National Green Tribunal
Amelia Textiles & Chemicals Pvt Ltd vs Uttar Pradesh Pollution Control Board on 16 January, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
APPEAL NO. 15/2020
(I.A. No. 127/2022)
IN THE MATTER OF:
Amelia Textile and Chemical Pvt. Ltd.
Having its registered office at 6/31-C, Parvati Bagla Road
Tilak Nagar, Kanpur, State of Uttar Pradesh-208002
through its Director and Authorized
Representative Kirtiman Singh Raikwar
...Appellant
Versus
Uttar Pradesh Pollution Control Board
Through its Secretary,
Building No. TC-12V, Vibhuti Khand, Gomti Nagar, Lucknow
Uttar Pradesh-226010
...Respondents
Counsel for Appellant:
Mr. Santhosh Krishnan and Mr. Aniruddha Deshmukh, Advocates
Counsel for Respondent(s):
Mr. Pradeep Mishra and Mr. Daleep Dhyani, Advocates for UPPCB
CORAM:
HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: September 23, 2022
Pronounced on: January 16, 2023
SYNOPSIS
Documents Para no Page no.
Facts as stated in Memo of Appeal 2-16 2-13
Tribunal's order dated 10.07.2020 17 13
Reply dated 02.12.2020 filed by UPPCB 18-22 13-24
Tribunal's order dated 04.01.2021 23-24 24-25
Tribunal's order dated 24.08.2021 25 25
Report dated 30.09.2021 filed by UPPCB 26-27 25-27
IA 202/2021 with objections filed by appellant to report dated 28-30 27-29
30.09.2021
Tribunal's order dated 12.11.2021 31 29-30
IA 127/2022 dated 23.05.2022 filed by appellant 32-35 30-36
Compliance report dated 28.07.2022 filed on 01.08.2022 by 36-38 36-42
UPPCB
Documents appended to the report dated 28.07.2022 39-47 42-55
1
Objections of appellant filed on 18.08.2022 to the report dated 48 55-61
28.07.2022
Documents appended with Objections dated 18.08.2022 49-54 61-65
Arguments 55-59 65-67
Issues 60 67-68
Issue I 61-84 68-76
Issue II 85-102 76-84
Issue III 103-106 84-85
Issue IV 107-143 85-103
Issue V 144-192 103-137
Issues VI and VIII 193-194 137
Issue VII 195-224 138-148
Offence under Prevention of Money Laundering Act, 2002 196-221 138-148
Operative part 225-227 148-149
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Appeal under Sections 16 (c) read with 18(1) of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010'), has been preferred by M/s. Amelia Textiles and Chemicals Pvt. Ltd., registered office at 6/31-C, Parvati Bagla Road Tilak Nagar, Kanpur, State of Uttar Pradesh through its Director and authorized representative Kirtiman Singh Raikwar, challenging order dated 28.05.2020, passed by Regional Officer, Uttar Pradesh Pollution Control Board, Kanpur Dehat (hereinafter referred to as 'RO UPPCB'), computing environmental compensation of Rs. 39,98,57,850/- and directing appellant to deposit the same without delay else recovery as arrears of revenue of the said amount shall be made.
2. The Facts in brief giving rise to this Appeal, as stated in the memo of Appeal are, that appellant was incorporated as a private limited company under the provisions of Companies Act, 1956 vide Certificate of Incorporation dated 03.03.1994, issued by Registrar of Companies, Kanpur, UP. Appellant intended to go for production of Basic Chrome Sulphate (hereinafter referred to as 'BCS'), Sodium Dichromate and Sodium Chromate for which it established its manufacturing unit at Araji 23, area 2.097-hectare, village Khan Chandrapur, District Kanpur Dehat. UP Pollution Control Board (hereinafter referred to as 'UPPCB') vide order 2 dated 11.09.2001 granted No Objection Certificate (hereinafter referred to as 'NOC') (In fact it is a consent to establish i.e., 'CTE') for establishing such unit giving details of products as under:
Basic Chrome Sulphate 5.0 MT/day or
Sodium Dichromate 1.37 MT/day or
Sodium Chromate 2.0 MT/day or
Chromic Acid 0.75 MT/day
3. The raw materials required for manufacturing of the above product mentioned in the above NOC/CTE are Chromate liquor, Dichromate liquor or Sodium Dichromate, Sulphuric Acid and Molasses. NOC/CTE contained various conditions and para 9 of such conditions required appellant to comply with the requirement of Hazardous Wastes (Management & Handling) Rules, 1989 (hereinafter referred to as 'HWMH Rules, 1989') and to ensure receipt of authorization under the said Rules. With regard to disposal of hazardous sludge, para 8 of NOC/CTE dated 11.09.2001 provided that the same shall be temporarily collected in lined tanks inside the premises till waste disposal on the authorized premises is allowed. In case, the capacity of lined tanks gets full by storage of hazardous waste, proponent shall ensure immediate stoppage of production.
4. Appellant commenced production and operation of the unit in 2001. Chromium waste generated was kept in an RCC proofed dump, within factory premises. It was the responsibility of State Government or UPPCB to provide Common Treatment Plant/Common Secured Landfill Facility for MSME sector but no such plant was set up by UPPCB in the concerned area. In 2001, appellant and certain other units at Kanpur Dehat, Kanpur, Unnao and Fatehpur District constituted a society named 'Kanpur 3 Pradooshan Niyantran Samiti' (hereinafter referred to as 'KPNS'). One of the main purposes of the society was to develop a common facility for treatment, storage and disposal of hazardous waste generated by the units in the respective areas. Recognising efforts made by the above industries, UPPCB executed a Lease Deed dated 11.03.2003 with KPNS, allotting 3 hectares of land at village Kumbi Akbarpur, Sikandara Road, District Kanpur Dehat at plot no. 672 for a period of 5 years. The purpose of above execution of Lease was to develop a common facility for treatment, storage and disposal of hazardous waste generated by industries of District Kanpur Dehat and Kanpur Nagar. Period of Lease was from 11.03.2003 to 10.03.2008. Development of Common Hazardous Waste Disposal Facility (hereinafter referred to as 'CHWDF') at allotted land was required to be completed by the lessee i.e., KPNS within 6 months from the date of lease. Appellant and other units made contributions for construction of CHWDF on the leased area and the said construction was completed in 2005 and information of completion of construction of leachate treatment plant was communicated to RO UPPCB vide KPNS's letter dated 30.09.2005. Vide the said letter, KPNS sought permission from RO UPPCB to start dumping of hazardous waste at the newly created CHWDF.
5. UPPCB, however, handed over the above infrastructure facility to M/s. Bharat Oil and Waste Management. The members of KPNS protested whereupon Member Secretary, UPPCB, Lucknow assured the members of KPNS that entire chrome waste at Khan Chandpur, Rania, Kanpur Dehat shall be lifted by Bharat Oil and Waste Management. However, no such disposal took place. On 07.02.2005, RO UPPCB issued closure order, thereafter, appellant ceased operation of the unit on 07.02.2005 and ultimately sold factory on 18.05.2011.
4
6. There was a matter pending before Tribunal regarding pollution of River Ganga, i.e., OA No. 200/2014 M.C. Mehta vs. Union of India & Others wherein on 22.08.2019, Tribunal passed a detailed order on the subject of prevention and remediation of pollution in River Ganga. The extract of order relevant for the purpose of the present Appeal, as quoted in Para 4(viii) of memo of Appeal, is quoted as under:
"Chromium dump has been stored since 1976 which is required to be shifted to TSDF. The State of Uttar Pradesh may undertake health survey of the area and ensure shifting of the Chromium dumps within three months failing which it would be liable to pay environmental compensation of Rs. 10 lakhs per month to CPCB besides furnishing performance guarantee of Rs. 1 Crore to CPCB."
7. Appellant was not a party in the said OA. Thereafter, two suo-moto cases were registered by this Tribunal on 27.09.2019 being OA No. 985/2019, In Re: Water Pollution by Tanneries at Jajmau, Kanpur, Uttar Pradesh and OA No. 986/2019, In Re: Water Pollution at Rania, Kanpur Dehat & Rakhi Mandi, Kanpur Nagar, Uttar Pradesh. Order dated 27.09.2019 passed in OA No. 985/2019, (supra) and OA No. 986/2019, (supra) shows that the cases were registered in view of reports dated 25.09.2019 and 26.09.2019 submitted by a Committee of Justice Arun Tandon (Former Judge of Allahabad High Court). The above Committee was constituted vide order dated 06.08.2018 passed in OA No. 200/2014 (supra) to oversee compliance of Tribunal's order for control of pollution in River Ganga. UPPCB issued notice dated 24.10.2019, alleging that appellant has illegally dumped Chromium waste at village Khan Chadrapur, Rania, Kanpur Dehat, causing ground water contamination, hence liable for imposition of environmental compensation. UPPCB proposed environmental compensation of Rs. 39,98,57,850/-.
8. No reply was filed by appellant. Representatives of some other units 5 met with Chief Environment Officer, UPPCB on 01.11.2019 and they were given impression that the matter is under consideration and personal hearing will be accorded before taking any final decision.
9. However, final order was passed on 19.11.2019 (Annexure A/8, page 114 of paper book), reiterating demand of Rs. 39,98,57,850/- as environmental compensation. Appellant was directed to pay the aforesaid amount of compensation within 15 days. The relevant extract of order dated 19.11.2019 reads as under:
"Ñi;k ek0 ,u0th0Vh0 esa fopkjk/khu vks0,0 la0&200@2014 ,e0lh0 esgrk cuke ;wfu;u vkWQ bf.M;k o vU; esa ikfjr vkns'k fnukad 07-08-2019 ds lalqxr va'k fuEuor gSa & ".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga....."
Ekk0 U;k;ewfrZ Jh v:.k V.Mu v/;{k ekWuhVfjax desVh }kjk fnukad 08-08-2019 dks vks0,0 la0 200@2014 esa ikfjr vkns'k ds vuqikyu dh leh{kk cSBd esa fuEu funsZ'k fn;s x;s gSa & "It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."
Ekk0 jk"Vªh; gfjr vf/kdj.k] ubZ fnYyh }kjk vks0,0 la0&985@2019 ,oa vks0,0 la[;k 986@2019 esa fnukad 27-09-2019 dks ikfjr vkns'k ds vuqikyu esa 'kklu Lrj ij lEiUu cSBd fnukad 17-10-2019 dks leh{kk ds nkSjku fn;s x;s funsZ'k ds vuqlkj ^^ftu m|ksxksa }kjk viuk Øksfe;e osLV meju] izfr}iqj ,oa xzke [kkupUnziqj] tuin dkuiqj nsgkr esa voS| :i ls MEi fd;k x;k gS] ds fo:) Polluter Pays Principle ds vk/kkj ij i;kZoj.kh; {kfriwfrZ vf/kjksfir dj olwyh dh dk;Zokgh dh tk;sA** mDr funsZ'k ds vuqØe esa {ks=h; dk;kZy;] dkuiqj nsgkr ds i=kad 1515@vkj&130@2019 fnukad 22-10-2019 }kjk izkIr vk[;kuqlkj jfu;kW] dkuiqj nsgkr ds vUrxZr xzke&[kkupUniqj] meju] Qrsgiqj jks'kukbZ ds vk;Zuxj] jktsUnz uxj pkSjkgk ,oa xzke&fpjkSjk dk HkwxHkhZ; ty voS| :i ls MEi gSDlkoSysUV Øksfe;e ls iznwf"kr gqvk gSA eSllZ pkWnuh dsfedYl izk0 fy0] [kkupUnziqj jfu;k] dkuiqj nsgkr ftldh mRiknu {kerk 3 ,eVhMh Fkh] ds }kjk mRiknu vof/k ds nkSjku m|ksx ls tfur gsDlkosysUV Øksfe;e ;qDr ifjladVe; vif'k"V dk vlqjf{kr <ax ls Hk.Mkj.k@MEi fd;k x;k gSA voS/k :i ls Hk.Mkfjr dqy ifjladVe; vif'k"V 62225 ,eVh esa vkids m|ksx dk 14-28 izfr'kr ;ksxnku gSA dsUnzh; iznw"k.k fu;a=.k cksMZ] fnYyh }kjk ifjladVe; ,oa vU; vif'k"V ¼izca/ku ,oa lhekikj lapkyu½ fu;e] 2016 ds izkfo/kkuksa dk myya?ku fd;s tkus ds ifjizs{; esa i;kZoj.kh; {kfriwfrZ vkadfyr fd;s tkus ds laca/k esa xkbZMykbu tkjh dh x;h gS] ftlesa fuEu izkfo/kku gS% 6 Environmental Compensation (EC) = Q x ERF x R Where Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of the Acts/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage) ERF = Environmental Risk Factor which is a number (as given in Table 1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:
S. Violation ERF
No.
For Hazardous For Other
Waste Waste*
1- When hazardous and other wastes 1.5 0.3
is disposed at unauthorised place
or handed over or sold to
unauthorised party
2- When treatment has not been 1.0 0.2
imparted, as required, but only
partial treatment has been given
(TSDF/Actual user)
3- When product (derived from 1.0 0.2
hazardous or other waste is not
confirming to prescribed
specification or is specified for
restricted used but sold in open
market against (in case of actual
user)
4- Wastes found stored beyond the 0.1 0.05
stipulated period (refer Rule 8 of the
HOWM Rules, 2008)
R = Environmental Compensation factor, which may be taken as Rs.30,000.
उ के अनुसार क गई गणना के आधार पर आपके उ ोग के िव पये 39,98,57,850/- (उ तािलस करोड़, अ ानवे लाख, स ावन हजार आठ सौ पचास) मा क पयावरणीय ितपू त अिधरोिपत कये जाने से पूव बोड के प दनांक 24.10.2019 ारा कारण बताओ नो टस ेिषत कया गया था, िजसके संदभ म उ ोग का िनधा रत समयाविध उ र अ ा है ।
अतः उपरो प रि थितय म मा० रा ीय ह रत अिधकरण, नई द ली ारा ओ०ए० सं०- 985 / 2019 एवं ओ०ए० सं या 986 / 2019 म दनांक 27.09.2019 को पा रत आदेश के अनुपालन म संयु सिमित क सं तुित के अनुसार उ ोग ारा कये गये उ लंघन से पयावरण पर पड़ने वाले िवपरीत भाव क ितपू त हेतु स म तर से अनुमोदनोपरा त मैसस अमिलहा टे सटाई स ए ड के िमक स ा० िल०, खानच पुर रिनया, कानपुर देहात पर कु ल पये 39,98,57,850/- (उ तािलस करोड़, अ ानवे लाख, स ावन हजार आठ सौ पचास) मा क पयावरणीय ितपू त के प म अिधरोिपत कया जाता है तथा िनदिशत कया जाता है क पयावरणीय ितपू त क धनरािश को उo o दूषण िनयं ण बोड के यूिनयन बक ऑफ इि डया, िवभव ख ड गोमती नगर, लखनऊ ि थत बक के खाता सं या-701502010002104 आई0एफ0एस0 कोड - UBIN0570150 म 15 दन के अ दर जमा कर जमा क गयी धनरािश का सा य े ीय कायालय एवं बोड मु यालय म तुत करना सुिनि त कर।
7
कृ पया नोट कर क पयावरणीय ितपू त का भुगतान िनधा रत समयाविध म ा न होने क ि थित म पयावरणीय ितपू त क वसूली हेतु भू-राज व क भांित वसूली क कायवाही क जायेगी, िजसका स पूण उ रदािय व उ ोग एवं उ ोग के संचालन हेतु उ रदायी ि य का होगा"
English Translation by Tribunal:
"That the relevant portion of the Order dated 07.08.2019 passed in O.A. No.200/2014 passed by the Hon'ble N.G.T. in the matter of M.C. Mehta Versus Union of India and others, is as follows:
".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga....."
That the following directions were issued during the Review Meeting in compliance of order dated 08.08.2019 passed in O.A. No. 200/2014 by the Monitoring Committee lead by Hon'ble Justice Mr. Arun Tandon:-
"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."
That in compliance of Order dated 27.09.2019 passed in O.A. No.985/2019 and O.A. No.986/2019 by the Hon'ble National Green Tribunal, New Delhi, the directions were issued by the Review Committee in its meeting held on 17.10.2019 at state level that the Industries who have illegally dumped their Chromium Waste in Umran, Prasidhpur and Village Khanchanderpur, District Kanpur Dehat, on them the fine for environmental compensation loss shall be imposed and its recovery shall be made from them on the basis of Polluter Pays Principle.
That in compliance of the aforesaid directions, in accordance with the report received from the Regional Office, Kanpur Dehat vide its Letter No.1515/R-130/2019 dated 22.10.2019, the Ground Water have been polluted in Village Kanchander Pur, Umran, which falls under Rania, Kanpur Dehat and Village Arya Nangar, Rajender Nagar Chauraha and Village Chirora under Fatehpur Roshnai due to illegal dumping of Hexavalent Chromium. M/s Hilger Chemi Pvt. Ltd. Village Chirora Raipur, Khanchanderpur Rania, Kanpur Dehat, whose production capacity was 3 MTD which have done illegal storage/dumping of Hazardous Waste containing Hexavalent Chromium during the period of their production in a unsecured manner. That out of total 62225 MT illegally stored Hazardous Waste, the contribution of your factory is 14.28 percent.
That the Central Pollution Control Board, Delhi have issued the guidelines for calculation of environmental compensation in accordance with the provisions of the Hazardous and Other Wastes 8 (Management & Transboundary Movement) Rules, 2016, wherein the following provisions have been laid down: -] Environmental Compensation (EC) = Q x ERF x R Where Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of the Acts/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage).
ERF = Environmental Risk Factor which is a number (as given in Table-1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:-
S. Violation ERF
No.
For Hazardous For Other
Waste Waste*
1. When hazardous and other 1.5 0.3
wastes is disposed at
unauthorised place or handed
over or sold to unauthorised
party
2. When treatment has not been 1.0 0.2
imparted, as required, but only
partial treatment has been given
(TSDF/Actual user)
3. When product (derived from 1.0 0.2
hazardous or other waste is not
confirming to prescribed
specification or is specified for
restricted used but sold in open
market against (in case of actual
user)
4. Wastes found stored beyond the 0.1 0.05
stipulated period (refer Rule 8 of
the HOWM Rules, 2008)
R = Environmental Compensation factor, which may be taken as Rs.30,000.
On the basis of the calculation done as above, prior to calculation of environmental loss of Rs. 39,98,57,850/- (Rupees Thirty nine crores ninety eight lacs fifty seven thousand eight hundred and fifty only), vide Board's letter dated 24.10.2019, a show cause notice was issued, in respect of which reply of the industry is not received within the prescribed time.
Therefore, under the above circumstances in compliance with the order passed dated 27.09.2019 passed in O.A.No.985/2019 and O.A.No.986/2019 by Hon'ble National Green Tribunal, New Delhi, as per the recommendations of Joint Committee, the violations committed by the industry will have a negative impact on the environment. M/s Amelia Textiles & Chemicals Pvt. Ltd. A total of Rs 39,98,57,850/- (ninety nine crore, ninety eight lakh, fifty seven thousand eight 9 hundred and fifty) only is imposed on Khanchandrapur Rania, Kanpur countryside as environmental compensation and it is directed that the amount of environmental compensation should be submitted to the UP Pollution Control Board's Union Bank of India, Vibhav Khand, Gomti Nagar, Lucknow to the bank's account number- 701502010002104 IFS code- UBIN0570150 within 15 days, the proof of the amount deposited is sure to be presented in the regional office and the board headquarters."
10. Thereafter, appellant filed a protest letter dated 04.12.2019 addressed to Member Secretary, UPPCB, stating that its unit has operated only from 01.08.2001 to 2005, therefore, demand of environmental compensation for dumping of Chromium waste between the period of 1976 to 2019 is absolutely illegal; appellant unit has been singled out and the basis for computation of compensation was also not disclosed; request was made to permit operation of factory on conversion basis i.e., production of BCS from Dichromate, generating no hazardous waste but vide letter dated 18.06.2009, such permission was denied though two other units at Rania, Kanpur Dehat were allowed to set up other type of factories; UPPCB instructed appellant not to set up any type of industry and instead find some other land to set up any type of industry; and, appellant was compelled to sell factory on 18.05.2011. It was thus, requested by appellant in the protest letter dated 04.12.2019 that since factory has closed long back in 2005, it may be given further time to file proper reply or to place further record in the matter.
11. Thereafter, appellant filed another protest letter dated 09.12.2019 (annexure A/10, page 123) addressed to Member Secretary, UPPCB, in response to notice dated 19.11.2019 issued by RO UPPCB. It was said that copy of the report submitted to Tribunal was not supplied; company started its production from August 2001 and stopped on 07.02.2005; it was given permission to operate chromium based chemical factory at Rania, Kanpur Dehat vide NOC dated 11.09.2001; During the period of 10 operation between 2001 to 2005, there were several intermittent durations when factory did not operate on the orders of UPPCB, for reasons of inspection or other incidental or circumventing situations; the total capacity of undersigned company was production of BCS (high grade) 3 MT/day and average waste discharge from factory unit was about 1.5 MT/day; company had its in-house pucca dump within factory premises for the purposes of storing waste product which contained only 0.1% to 0.5% Chromium in its waste; once in-house pucca dump situated within factory premises was full, appellant company along with other Chromium based factories approached UPPCB to arrange for accumulated waste disposal and to provide alternate site for dumping of waste produce; since no such site was provided by UPPCB; there was a private site at which several (about 24) Chromium based factories were dumping Chromium waste, appellant company also dumped its waste produce on the said site.
12. Appellant further said that UPPCB acquired 10.5 hectares of land for development of Common Secured Land Fill Facility (hereinafter referred to as 'CSLF') in 1994 but did not provide the said facility for a long period; in 2003 despite availability of land, land fill site was not provided by UPPCB, hence the society i.e., KPNS was formed in 2001, with which a Lease Deed was executed by UPPCB on 11.03.2003, for developing CSLF which was completed in 2005 and communicated to UPPCB vide letter dated 30.09.2005 but for reasons best known to UPPCB, permission was not granted to KPNS and instead, it was handed over to M/s. Bharat Oil & Waste Management, Kumbhi, Kanpur Dehat for its waste management; dump containing Chromium lying on the questioned site, was not shifted by UPPCB nor permission was granted to appellant company or any other member of KPNS to shift the said dump to constructed Land Fill site, hence 11 ill effects whatever may have been caused due to percolation and seepage of Chromium from the dump waste at questioned site was solely due to inaction on the part of UPPCB; the report of Hon'ble Mr. Justice Arun Tandon disclosing facts regarding damage to ground water in village Khanchandpur, caused due to seepage of Chromium waste dumped at private site from 1976 and onwards but there are others also responsible in as much as the oil refinery named Laxmi Oils, was putting its water effluent underground by reverse boring as such there was not only Chromium in the underground contamination but also oil waste and other chemicals; the computation of compensation has been done by referring to total quantity of waste lying on the questioned site as 62225 MT though in an earlier letter dated 01.04.2009 issued by Member Secretary, UPPCB to Member Secretary, CPCB, it was mentioned that as per study report of IITR, total BCS waste lying at the questioned site was around 45000 MT; the company has already closed its operation in February 2005 and has been dismantled; there is malice and malafide on the part of UPPCB to single out appellant and 5 other units since they are the most smallest companies in terms of their production capacity functioned in the locality, operated for a period of about 5-10 years and cannot be held responsible for BCS waste lying for last 42 years i.e., 1976 to 2019, which is also increasing after closure of the said factories; the company is not in business activities after 2005, total assets of the company as per audited balance sheet as on 31.03.2002, were to the tune of Rs. 64,20,301/- as such it is not in a position to honour huge demand of more than Rs. 39 Crores; the order is ex-parte; in violation of principle of natural justice; highly belated and liable to be set aside.
13. No action was taken on the protest letter of appellant and instead, authorities proceeded for recovery of amount of environmental 12 compensation as arrears of land revenue and a citation dated 08.01.2020 was issued by Tehsildar, Rania, Kanpur Dehat under the provisions of Uttar Pradesh Revenue Code, 2006 and the Rules framed there under. Appellant challenged order dated 19.11.2019 before this Tribunal in OA 19/2020, Amelia Textiles and Chemicals Pvt. Ltd. vs. UPPCB & Another which was disposed of vide order dated 28.01.2020, passing following order:
"Grievance in these applications is against orders of the Uttar Pradesh State PCB assessing compensation on 'Polluter Pays' principle for violation of law. Though these applications under Section 14 of the NGT Act, 2010 are not maintainable, we have treated the same to be appeal under Section 16 of the NGT Act, 2010.
According to the applicants, their units were not in operation at the relevant time and did not dump the hazardous waste for which they are held liable. This fact could not be pointed out as opportunity of hearing was not given.
Without expressing any opinion on merits, we direct that the impugned orders may be treated as a proposal with reference to which the applicants may furnish their response to the UP State PCB within two weeks. The UP State PCB may consider the objections of the applicants and pass an appropriate order within four weeks thereafter dealing with the matter on merits, in accordance with law.
The applications are disposed of."
14. Pursuant to Tribunal's order dated 28.01.2020, representation dated 10.02.2020 was submitted by appellant (Annexure A/15 at page 162 to memo of Appeal). In the said representation, besides legal arguments, the facts as stated in the protest letter, were reiterated.
15. Without giving any further opportunity or without making any query etc., RO UPPCB, Kanpur Dehat passed impugned order dated 28.05.2020, reiterating its demand of environmental compensation of Rs. 39,98,57,850/-.
16. Appellant has filed present Appeal challenging impugned order dated 28.05.2020 passed by RO UPPCB.
13Tribunal's order dated 10.07.2020
17. The appeal was taken up by Tribunal for admission/hearing on 10.07.2020 and after noticing the contentions advanced in support of Appeal, notice was issued to UPPCB to submit its response. Reply dated 02.12.2020 filed by UPPCB
18. UPPCB has referred to the background facts stating that Monitoring Committee under Chairmanship of Hon'ble Justice Arun Tandon, was constituted to ensure compliance of Tribunal's order passed in OA No. 200/2014 (supra). The said Committee, in its meeting held on 08.08.2019, issued certain directions which are referred in reply as under:
"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The Committee directed CPCB to issue notice for levy of Environmental compensation to the industries which have caused and are causing damage to the environment."
19. Two reports dated 25.09.2019 and 26.09.2019 were submitted by the Committee which were considered by Tribunal on 27.09.2019 while considering OA Nos. 985-986 of 2019 (supra) and after considering the report, Tribunal issued certain directions. We may reproduce the relevant extract of said order dated 27.09.2019, as under:
2. The order of this Tribunal dealt with the matter on transfer by the Hon'ble Supreme Court of proceedings pending before it in W.P. (Civil) No. 3727/1985 on the subject of control of pollution of River Ganga. The Tribunal dealt with the matter vide two orders 10.12.2015 and 13.07.2017 with respect to different segments. Execution of the said orders is pending. The last order on the subject was passed on 22.08.2019, dealing with prevention of discharge of untreated industrial waste and sewage in Ganga and its tributaries, installation, maintenance and upgradation of STPs, CETPs and ETPs, control of dumping of waste, regulating the flood plains, maintaining e-flow and taking other steps. An extract from the order to the extent relevant for dealing with the present issue is as follows:
"16. As already observed by this Tribunal including in the order dated 14.05.2019 that River Ganga being National River with distinct significance for the country, even a drop of pollution therein is a matter of concern. All the authorities 14 have to be stringent and depict zero tolerance to the pollution of River Ganga. Wherever STPs are not operating, immediate bioremediation and/or phytoremediation may be undertaken if feasible. To avoid procedural delay of tender processes, etc. specifications and norms for undertaking such activities may be specified in consultation with the CPCB as was earlier directed in our order dated 29.11.2018. Performance guarantees may be required to be furnished for ensuring timely performance. It needs to be ensured that setting up of STPs and sewerage network to be completed and carried out so as to avoid any idle capacities being created. Performance guarantees may be taken for preventing such defaults.
17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
18. With regard to works under construction, after 01.07.2020, direction for payment of environmental compensation of Rs. 10 lakhs per month to CPCB for discharging untreated sewage in any drain connected to river Ganga or its tributaries and Rs. 10 lakhs per month to CPCB per incomplete STP and its sewerage network will apply. Further with regard to the sectors where STP and sewerage network works have not yet started, the State has to pay an Environmental Compensation of Rs. 10 lakhs per month after 31.12.2020. The NMCG will also be equally liable for its failure to the extent of 50% of the amount to be paid. Till such compliance, bioremediation or any other appropriate interim measure may start from 01.11.2019.
23. It was stated that though the tanneries were closed for violating the norms of discharge, the dues have not been collected from the members of the CETPs and the industries are clandestinely operating as shown from the data of water samples which contained high Chromium.
24. Chromium dump has been stored since 1976 which is required to be shifted to TSDF. The State of Uttar Pradesh may undertake health survey of the area and 15 ensure shifting of the Chromium dumps within three months failing which it would be liable to pay environmental compensation of Rs. 10 lakhs per month to CPCB besides furnishing performance guarantee of Rs. 1 Crore to CPCB.
25. Let the remedial measures be taken by the SPCB for effective monitoring by installing CCTV cameras or undertaking surveillance in any other manner with the help of local police."
3. Though the matter relating to all aspects of pollution of River Ganga is being separately dealt with as above, present reports highlight an emergent issue threatening the life and health of citizens in a particular area requiring intervention by this Tribunal. We thus proceed to deal with the said reports. Ms. Katyani, Advocate present in court is appointed as Amicus to assist in the matter. Mr. Rajkumar, Advocate for the CPCB present before the Tribunal enters appearance.
4. We first take up the report filed in O.A No. 986/2019 relating to Kanpur Nagar, Uttar Pradesh around the area of Chromium dump at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar Water Pollution at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur. As already noted, the said dump of hazardous Waste has been in existence since 1976 and inspite of repeated orders, the authorities have failed to ensure its shifting. This gross failure of responsibility by the State of U.P. has resulted in situation depicted in the report which we will presently refer.
5. Justice Arun Tandon along with the representatives of the NMCG, CPCB, UPPCB, UP Jal Nigam and the local residents of the area visited the sites and noticed the status of the Rania and Rakhi Mandi, Kanpur as follows:
"Status at Rania The Committee found that huge dump of chromium was stacked about 500 meter away on the right side of the Kanpur-Jhansi Highway in village Khan chandpur falling in district Kanpur Dehat. Photographs of the dump were taken and are enclosed along with the report. The Committee was informed that the land over which the chromium dump is lying is either private land or the land belonging to Gram Sabha. The rain water collected near the dump was green in colour.
The Committee was informed by the residents of the area that the water which comes out from hand pump/bore well was coloured. It was unfit for drinking. The Committee accordingly collected samples from various places within the radius of around 150 meter both towards the highway from the dump as well as from the opposite direction. At all places the Committee found that colour of the water, sample thereof has been taken was greenish. Even the water from the bore well situate 16 within a factory and was more than 150 meter deep had the same colour.
The Committee was taken across the highway by the local residents and the Committee could notice that the water from the hand pumps which was being used by the inhabitants of the locality was green in colour. Photographs of the same have been taken, samples have been drawn for analysis. Water from the hand pump at roadside dhaba was also provided to the Committee which was more green in colour. The sample of the water so provided along with analysis report of the same as carried out by CPCB is filed before the Hon'ble National Green Tribunal for its perusal.
The residents of the area informed that there was no source of fresh water except the underground water. It was stated that earlier a tube well was constructed on the left side of the highway but had to be closed as the underground water received from the tube well was green in colour.
The total population of village Khanchandpur is reported to be around 1500. The Committee also specifically noted that the surface area of the land of village Khanchandpur on both sides of the highway was more or less similar to the surface area of the dump of the chromium. The underground water which is used and which lies collected in small puddles is used for drinking by animals.
Those who have resources purchase drinking water in 20/50 litre cans everyday. The residents of the area made serious complaints. They stated that the drinking water or underground in the village was contaminated due to leachet from the chromium dump. An old man specifically showed the physical infirmity in his leg to the Committee. He has been photographed. Copy whereof is filed along with the report.
The presence of chromium in the underground water in village Khanchandpur many times the permissible limit is established from the analysis report of CPCB of the samples drawn. Use of such quality of water by human being and animals is dangerous not only to the existing residents but also for the future generations to come. Remedial steps are required to be taken to ensure safe drinking water for the residents of the area as well as for animals.
The Committee was provided a copy of the letter of the State Government dated 02.08.2019 requiring the compliance of the order of the Hon. National Green Tribunal dated 13.07.2017 addressed to the Chief Executing Officer, U.P.S.I.D.A. with reference to DPR which was for removal of chromium dump at Rania. Copy of the said letter is enclosed along with this report.17
On behalf of the U.P.S.I.D.A. vide letter dated 20.08.2019 serious objections with regard to the implementation of the proposed temporary measures/remedial measures in respect of the chromium dump at Raniaas suggested in the DPR of M/s ERM India Pvt. Ltd., were raised. The Committee was also shown a copy of the temporary remedial measure as suggested by M/s ERM India Pvt. Ltd., referred to as addendum to DPR letter dated 20.08.2019 along with addendum are enclosed along with the report.
It is surprising that in the temporary measures so suggested there is no mention of the measures to be taken for improving the quality of the underground water and/or the measures required to be taken for ensuring safe drinking water for human beings and animals of the concerned village as well as of the surrounding area of the village concerned.
In the opinion of the Committee the situation at Rania is alarming and needs immediate intervention of Hon. National Green Tribunal.
Status at Rakhi Mandia Rakhi Mandi, Kanpur Nagar the Committee found that the water received from a bore well more than 150 feet deep, constructed inside a petrol pump was green in colour. The Committee was informed that the water received from hand pumps which were earlier used in the area was not portable and was green in colour. All such hand pumps have been closed.
Samples of the underground water have been drawn. Analysis report is awaited. The Committee has no hesitation to record that the water at Rakhi Mandia, Kanpur Nagar is also completely unfit for drinking purposes for human being and animals."
6. The following measures have been suggested:
"(a) All hand pumps along with tubewells/borewells installed in the area be sealed and there should be complete prohibition on extraction of underground water for drinking purposes both at village Khanchandpur, Kanpur Dehatand Rakhi Mandi, Kanpur Dehat.
(b) State Government through its Chief Secretary must be directed to ensure supply of drinking water through tankers on day to day basis to the residents of the village Khanchandpur and also to surrounding areas till measures as below are not taken.
(c) Drinking water Sintex tanks be installed in appropriate number at appropriate places in village Khanchandpur for providing potable water within a period of 15 days for the use of the residents of the area. These tanks must be connected 18 to a supply pipe line from a source of potable water within another 7 days and till then the tanks be filled everyday with drinking water through tankers.
(d) The materials which had been purchased for the purpose of Maha Kumbh Melaat Allahabad can be safely used for the above.
(e) Under the Addendum of DPR has to be made available for the purpose transhipment of the dump of the chromium by the State Government."
7. A bottle of water of sample collected on 17/18.09.2019 from Khan Chandpur handpump duly signed by Justice Arun Tandon has also been received which is handed over to Sh. Rajkumar, Advocate for the CPCB. The CPCB may have the same analyzed and furnish its report to this Tribunal with all relevant details before the next date.
8. The above report is self-speaking and paints a grim picture of failure of the authorities in taking remedial measures, forcing the inhabitants to drink polluted water which is a serious hazard to the health. Needless to say that access to potable drinking water is a guaranteed fundamental right and inalienable duty of the State. The State has clearly failed in doing so in the present case. As suggested in the report, it is necessary to require remedial measures to be taken especially with regard to supply of drinking water to the affected inhabitants in the area.
9. The second report relates to Water Pollution by Tanneries at Jajmau, Kanpur. Apart from the fact that incorrect information was given to the Committee appointed by the Tribunal as mentioned in the report, the report shows that vide order dated 08.08.2019, Shri Manoj Kumar Singh, Principal Secretary, Urban Development, UP allowed the Jal Nigam, Kanpur to discharge effluents into River Ganga, pending cleaning of the trunk sewer. Such discharge is still continuing. 43 MLD STP was non-functional and may require one year to be functional. Industrial effluent to the extent of 10-12 MLD received in CETP was being pumped into irrigation canal untreated.
10. Any discharge of pollutants into a water body is prohibited under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and is punishable by imprisonment. We are surprised that the Principal Secretary of the State has permitted such violation of law. The Uttar Pradesh State PCB was bound to initiate action for prosecuting such officer and all those discharging pollutants in River Ganga and failure to do appears to be against the mandate of law.
11. The report refers to two charts furnished by the NMCG handed over to the Committee which are contradictory as follows:
" Name of Drain Status with Status with reference to reference to chart chart dt. 18.08.19 (B) dt. 30.08.19 (A) 19
1. Ranighat Tapped Completed Partially (.89 To be 1.89 MLD tapped MLD) completed by Aug 2020
2. Sheetla Bazar -do- -do- Partially (4.25 -do- 5.75 MLD tapped MLD)
3. Dhudhia Ghat -do- -do- -do- (5.66 -do-
2.34 MLD MLD)
4. Wazidpur -do- -do- -do- (20 7.66 MLD MLD)
5. Ganda Nala -do- -do- -do-
55 MLD
6. Hatwa Khand -do- -do- -do- (5.44 11.44 MLD MLD)
12. The report mentions that while on 17.07.2019, information was given that STPs and CETP at Jajmau and Kanpur were not functional, on 02.09.2019, it was stated that the same were functional. We also note that from the minutes of meeting held on 02.09.2019 in the conference room of the NMCG under the Chairmanship of Justice Arun Tandon:
"Non-compliance to Faecal Coliform standards is unacceptable and Committee advised NMCG and UP Jal Nigam to take immediate steps to achieve the compliance."
It becomes necessary for this Tribunal to intervene for remedial action.
13. Accordingly, we direct:
i. The Chief Secretary, UP, may forthwith ensure steps for supply of drinking water to the residents in the affected area, apart from taking other remedial measures in the light of report of Justice Tandon in respect of Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar, around the area of Chromium dump and earlier orders of this Tribunal.
ii. The Chief Secretary, UP, may ensure that untreated sewage is not discharged in River Ganga and pending a permanent solution, at least temporary arrangement by way of phytoremediation, bio- remediation or any other technology is done to disinfect/treat water before the same is discharged into the River Ganga.
iii. The Chief Secretary, UP, may initiate necessary action against the Principal Secretary, Urban Development, UP , UP Jal Nigam, State PCB for their illegal action in permitting discharge of untreated sewage and effluents directly into River Ganga.
iv. A compliance report may be filed in the matter within one month by email at [email protected].
v. The CPCB may furnish its report to this Tribunal with all relevant details before the next date."
20. Pursuant to the order dated 27.09.2019, UPPCB examined the 20 matter and issued show cause notice dated 24.10.2019 to appellant industry, requiring to show cause as to why environmental compensation of Rs. 39,98,57,850/- be not imposed against it for illegal dumping of Chromium waste in village Khan Chandpur, Rania, Kanpur Dehat. 15 days' time was allowed to submit its reply but no reply was submitted hence on 19.11.2019, final order was passed, imposing environmental compensation of Rs. 39,98,57,850/-. Since industry failed to deposit the said amount, Recovery Certificate dated 18.12.2019 was issued for recovering the amount of environmental compensation as arrears of land revenue and in furtherance, a citation dated 08.01.2020 was issued by Tahsildar under U.P.Revenue Code and Rules framed thereunder.
Thereafter, appellant industry approached this Tribunal in OA No. 19/2020 (supra), contending that no opportunity was granted before imposing environmental compensation though this was an incorrect statement since show cause notice dated 24.10.2019 was already issued but appellant industry failed to reply to the said show cause notice. Tribunal disposed of OA No. 19/2020 (supra) by order dated 28.01.2020. UPPCB filed Review Application No. 13/2020, Uttar Pradesh Pollution Control Board vs. Amelia Chemicals Pvt. Ltd. Appellant was given an opportunity of hearing and, thereafter, order dated 28.05.2020 was passed.
21. Later on, review petition filed by UPPCB came up for hearing on 31.07.2020 when it was disposed of as infructuous.
22. Para-wise reply given by UPPCB in para 4 of reply is as under:
"4(i) That the contents of Para 4(i) need no reply.
4(ii) That in reply to the contents of Para 4(ii) it is submitted that consent to establish was granted to Appellant vide order dated 11.09.2001 wherein it was specifically mentioned that Appellant will not start operation without obtaining the 21 consent under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. It will comply with the norms prescribed under Air and Water Act. It has to ensure to obtain authorization under Hazardous Waste Management and Handling Rule, 1989 and to comply with those Rules. It has to ensure the compliance of the provisions of Public Responsibility Insurance Act, 1991 and to prepare and get approved Disaster Management Plan from Director of Industries.
4(iii) That in reply to the contents of Para 4(iii) it is submitted that the Appellant did not obtain consent to operate and under Air and Water Act nor obtained authorization under Hazardous Waste (Management and Handling) Rules, 1989. Several notices i.e. letter dated 29.10.1999, 14.02.2000, 16.06.2000 and 14.10.2004 have been issued to the Appellant for compliance of the conditions of NOC and environmental law including proper disposal of hazardous waste. Besides this, Appellant was also informed to comply with the environmental norms to obtain consent and authorization under Hazardous Waste (Management and Handling) Rules, 1989 and to obtain authorization but in vain. A closure order was issued to the industry under Section 5 of Environment (Protection) Act, 1986 on 16.12.2003 after giving proper opportunity by issuing showcause notice dated 20.11.2003. Subsequently closure order was suspended for 8 weeks on furnishing the bank guarantee of Rs. 50,000/- by the industry for ensuring compliance of Hazardous Waste (Management and Handling) Rules, 1989. As the industry continued non-compliance of the said Rules, hence the Board again issued closure order on 06.10.2005.
4(iv) & (v) That the contents of Paras 4(iv) and 4(v) are wrong hence denied. It is submitted that it is the obligation of the industry to treat and dispose of the hazardous waste. Common Treatment Plant and Secure landfill can be developed by the industries and for this purpose the Appellant with other units has formed a society titled as Kanpur Pradooshan Niyantran Samiti to which lease was granted by the Board of his land for five years. However, no plant was commissioned or completed which is admitted by Appellant in Para 4(v) Page 20 of the Appeal as no environmental clearance was granted.
4(vi) That the contents of Para 4(vi) are wrong hence denied. There is nothing on the record that the then Member Secretary of the replying Respondent ever assured the Appellant that entire chrome waste will be listed by Bharat Oil and Waste Management (Common Hazardous Waste Treatment and Disposal Facility).
4(vii) That in reply to the contents of Para 4(vii) it is submitted that the industry of the Appellant was closed w.e.f. 07.02.2005 due to non-compliance Hazardous Waste (Management and Handling) Rules, 1989.
4(viii) & 4(ix) That the contents of Paras 4(viii) and 4(ix) are matter of record and nothing contrary to record is admitted.
4(x) That the contents of Para 4(x) are not correct. As stated herein above the report submitted by the monitoring committee presided over 22 by Justice Arun Tandon submitted his report which are registered as O.A. No. 985-986 of 2019.
4(xi) That the contents of Para 4(xi) are matter of record. However, it is submitted that the chromium waste dump is because of Appellant and other basic chromium manufacturing units. Hence, show cause notice was issued by the replying Respondent as to why environmental compensation be not imposed on the Appellant for degradation of the environment caused by it.
4(xii) That the contents of Para 4(xii) are wrong hence denied. It is submitted that showcause notice itself was clear that the Appellant had to submit their explanation as to why environmental compensation be not imposed on it. It is submitted that as no reply to the showcause notice was received the replying Respondent has imposed the Environmental Compensation of Rs. 39,98,57,850/-
4(xiii)&(xiv). That the contents of Paras 4 (xiii) and (xiv) are matter of record and nothing contrary to record is admitted.
4(xv) That in reply to the contents of Para 4(xv) it is submitted that as per the list submitted by Appellant there are only 23 units mentioned in Annexure A-13, out of which 7 industries are shown in Kanpur Dehat, however, industry at Serial No. 19 K.U. Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat is neither in existence nor the replying Respondent has any record in respect of the said industry. Since the chromium dump has been found in Kanpur Dehat and only 6 units were operating in that area, hence action has been taken against the 6. It is submitted that 8 industries are shown in Kanpur, 7 in Unnao and 1 in Prayagraj. Out of 8 industries shown in Kanpur only 3 were basic chromium sulphate producing industries and were having proper hazardous waste disposal facilities and the rest 5 were not producing basic chromium sulphate as per the record. Out of 7 industries in Unnao only 3 are producing basic chromium sulphate and have proper hazardous waste disposal facilities. Rest 4 industries are not in existence as per the record. There is no proof of disposal of any waste by these units to Khandchandpur, Rania Kanpur Dehat. These units are 50 kilometers away from the concerned site. One unit shown in Prayagraj is 50 kilometers away and having proper waste disposal facility.
4(xvi) That in reply to the contents of Para 4(xvi) it is submitted that as no reply was filed to the showcause notice and the imposing of environmental compensation was done, further action was issued for recovery of the same.
4(xvii). That in reply to the contents of Para 4(xvii) it is submitted that the Appellant did not inform to this Hon'ble Tribunal that it has not submitted any reply to the showcause notice.
4(xviii)&4(xix). That contents of Para 4(xviii)&4(xix) are matter of record and nothing contrary to record is admitted.
4(xx) That in reply to the contents of Para 4(xx) it is submitted that 23 after considering the reply submitted by Appellant order dated 28.05.2020 was passed by imposing environmental compensation.
4(xxi) That the contents of Para 4(xxi) need no reply."
Tribunal's order dated 04.01.2021:
23. Reply filed by UPPCB was considered by Tribunal on 04.01.2021. In its order, Tribunal observed that the request for interim relief by appellant is not acceptable as no case is made out for absolute interim relief. On the question of limitation also, Tribunal observed that Section 15(3) of NGT Act, 2010 is applicable to Tribunal and does not apply to UPPCB. Further, when there is no limitation prescribed, an action must be taken within reasonable time but the reasonableness of period would have to be determined from case to case depending on facts and circumstances and public interest in the matter. There is no absolute bar to delayed action in every situation. Inaction by Statutory Regulator like UPPCB should not result in irreversible damage to affected victims. Absolute liability for continuing damage to environment and public health, cannot be ignored and 'Polluter Pays' principle has to be applied even if delay has been caused. Having said so, Tribunal, further in para 4 and 5 of the order dated 04.01.2021, said as under:
"4. ....The chromium dump in question at Kanpur Dehat is continuing to cause damage to the environment and the public health. The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.24
5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."
24. Hence, vide above order, Tribunal directed UPPCB to determine liability of environmental compensation specifically in respect to this appellant as also other similarly placed before us, after giving due opportunity, preferably within a period of three months and till then, no coercive action would be taken.
Tribunal's order dated 24.08.2021:
25. The matter was again taken up by Tribunal on 24.08.2021 wherein contention of appellant was reiterated that order of UPPCB did not indicate specific liability by determining the extent of waste caused by appellant. Tribunal also referred to its earlier order wherein it had directed UPPCB to determine specific liability after due opportunity to appellant within three months but unfortunately, despite lapse of six months, UPPCB neither passed any order nor submitted any report. Condemning the attitude and approach of UPPCB, Tribunal directed it to finalise the matter on or before 30.09.2021 and file its report. Appellant was also permitted to file objections, if any, to the final order passed by UPPCB in compliance of Tribunal's order dated 04.01.2021. Report dated 30.09.2021 filed by UPPCB:
26. In purported compliance of Tribunal's order dated 04.01.2021, Member Secretary, UPPCB has filed a compliance report dated 30.09.2021. The report has said that in order to give opportunity to the concerned proponents, UPPCB constituted a Committee. RO UPPCB, Kanpur Dehat sent a site inspection report of six industries to Committee on 13.07.2021 stating that during inspection, Chromium waste 1475 MT and 3177 MT was found stored in M/s. Waris Chemicals Pvt. Ltd. 25 Khanchandpur, Rania, Kanpur Dehat and M/s. Hilger Chem Pvt. Ltd., Village-Chiraura Raipur, Kanpur Dehat. Further, on the basis of information supplied by proponents, during course of hearing, further investigations were conducted and five more proponents engaged in production of BCS were identified who were also responsible for dumping of Chromium waste over questioned site. Consequently, amount of compensation was reviewed and revised in respect of eleven proponents/units including the present appellant as under:
Sr. Name & Address of Waste Revised
No. industry Quantity Environmental
(MT) Compensation
(in Rs.)
1 M/s Amelia Textiles & 2545.921 114566431
Chemicals Pvt Ltd, 23,
Khanchadpur, Rania,
Kanpur dehat.
2 M/s Cerulean Chemicals Pvt 15275.524 687398586
Ltd, Khanchadpur, Rania,
Kanpur dehat.
3 M/s Chandni chemicals Pvt 4773.601 214812058
Ltd, Khanchandpur rania,
Kanpur dehat.
4 M/s Heilger chem pvt ltd, 6334.125 285035616
vilichiraura raipur, rania,
kanpur dehat.
5 M/s Rukmani Chemicals Pvt 8168.162 367567299
Ltd. Rania, Kanpur dehat
6 M/s Waris Chemicals Pvt Ltd. 7518.382 338327196
Khanchandpur, Rania, Kanpur
dehat
7 M/s Khanna Vivek Chemicals 1230.528 55373775
Pvt. Ltd. C30D, Sitel, Panki,
Kanpur Nagar
8 M/s Unicame India, Village 7637.762 343699293
Malo, GT Road, Chaubepur,
Kanpur Nagar
9 M/s IGS Chemical Pvt Ltd, Plot 1782.144 80196502
No. 211, Bhawanipur
Mandhana, Kanpur Nagar
10 M/s Kaleena Chemicals, Pvt. 3139.969 141298598
Village Malo, GT Road,
Chaubepur, Kanpur Nagar
11 M/s Rahman Industries Ltd, 3818.881 171849646
(Old Name Bharat Chemical
Udhyog)
1002, 1003, Akrampur,
Chakarmpur, Unnao
TOTAL 62225 MT 280,01,25,000
26
27. The above chart shows that the revised compensation determined in respect of the present appellant was reduced to Rs. 11,45,66,431/- for Chromium waste quantity 2545.921 MT.
IA 202/2021 dated 08.11.2021 with objections filed by appellant:
28. Appellant filed objections along with delay condonation application i.e., IA No. 202/2021 dated 08.11.2021, to the report dated 30.09.2021. It objected report on the ground of delay i.e., the proceedings have been launched after 15 years of closure of the unit, Chromium waste dump existed since 1976 at the questioned site and such long delay cannot be treated as a reasonable time. Appellant has placed reliance on Supreme Court's judgment in Shalimar Works Ltd. vs. Workmen, AIR 1959 SC 1217 and Chhedi Lal Yadav vs. Hari Kishore Yadav, (2018) 12 SCC
527. Absence of any period of limitation or action taken by UPPCB was contested on the ground that when no time is prescribed, reasonable time should be taken to take action particularly, when the action causes pre judice which is pleaded by the aggrieved person. It is said that after 15 years of closure of unit, the record is not available and, therefore, reliance on hypothetical production by RO UPPCB, to compute compensation is wholly arbitrary and illegal. It was also pointed out that appellant sold the unit to M/s. Trident Infra Estate Pvt. Ltd. on 06.05.2012 and, therefore, at such a lapse of time, it cannot be held responsible for alleged dumping of Chromium waste between 2001 to 2005, particularly, when UPPCB failed to prove dumping by appellant at all. In this regard, reliance was placed on Supreme Court's judgment in State of Punjab vs. Chaman Lal Goyal, (1995) 2 SCC 570. It is also said that Regulators have proceeded on assumption of 'deemed attribution' which is impermissible in law particularly, when appellant had pleaded that it had not dumped its waste outside factory premises and operated only during 2001 to 2005. Further 27 objection is regarding non-furnishing of adverse material and arbitrary and irrational assessment. Appellant stored Chromium waste generated in lined tanks within factory premises and filed an application for disposal of waste likely to be generated in terms of HWMH Rules, 1989 but the said application was not disposed of. Appellant has not contributed to Chromium waste dumps of size 62225 MT; basis for such total volumetric assessment of waste of 62225 MT was not provided or disclosed; earlier quantity was assessed as 45000 MT which was increased subsequently to 62225 MT without giving any foundation or basis for such increase and on assumption basis, appellant cannot be held responsible for dumping of the said waste. It is also said that order dated 15.11.2019 passed in OAs No. 985-986 of 2019 (supra) talked of Chromium dumps and water pollution at two sites i.e., Rania, village Khan Chandpur, Kanpur Dehat and Rakhi Mandi Kanpur Nagar which were in existence since 1976. The aforesaid order also referred to CPCB report dated 30.10.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi required remediation of ground water and the damage of Rs. 280 Crores collectively assessed as cost for remediation was in respect of both the areas. Applying the said cost only to the dump found at village Khan Chandpur, is clearly erroneous and shows that some selected units have been singled out and met arbitrary treatment. Appellant has also given its details of production as under:
"(a) Total chromite ore utililsed between 2001-2005: 3833.475 MT
(b) Total waste generated between 2001-2005: 479.180 MT (stored inside premises)."
29. It is said that the details furnished by appellant have been ignored by UPPCB officials without any reason and the assessment of 2545.921 MT of waste, attributing to appellant is without any factual basis. 28
30. Summarizing objections in para 33, appellant has said as under:
"A. Appellant had not dumped chromium waste from its operations in any dump; the waste generated was kept within the factory premises.
B. Appellant has transferred the premises in 2011. It had operated only for a brief period between 2001-2005. It is being unfairly proceeded against for alleged dumping activity since 1976.
C. Entire exercise of determination and apportionment of liability is hit by delay and laches. Appellant is irreparably prejudiced by the delay as it has not been able to fully marshall contemporaneous evidence in defence of its innocence. D. Appellant has been deemed responsible for the pollution caused and held liable for the compensation payable pursuant to an adjudication to which it was not a party (i.e. OA Nos.985- 986/2019).
E. The underlying materials relying on which there was attribution to Appellant have not been furnished to the Appellant.
F. The assessment and apportionment of liability has been arbitrary and irrational."
Tribunal's order dated 12.11.2021:
31. Report dated 30.09.2021 submitted by UPPCB and objections by appellant were taken into consideration by Tribunal on 12.11.2021. After referring to the revised compensation determined by Statutory Regulator, Tribunal observed that UPPCB has not taken action in terms of earlier order of Tribunal. It was necessary that a specific finding is recorded about attributability of default to particular unit but report does not show such scientific exercise for determining liability. The conclusion fixing liability must be backed by scientific data and record including Form No. 1 and Form No. 13 submitted by concerned units at the time of seeking consent. Stand of the concerned units needed to be duly analysed to ascertain veracity. Delay in filing objections by appellant was condoned and objections were taken on record. Tribunal also said that to the extent liability is admitted in the objections, if any, the same ought to be straightaway enforced, pending further consideration. Consequently, 29 Tribunal directed that let such an exercise be undertaken. IA No. 127/2022 dated 23.05.2022 filed by appellant:
32. This IA was filed seeking an interim relief against order dated 14.04.2022. It appears that after this Tribunal's order dated 12.11.2021, UPPCB issued an order dated 14.04.2022, requiring appellant to pay environmental compensation of Rs. 14,61,66,558/- within 15 days failing which recovery proceedings as arrears of land revenue shall be initiated. The extract of the order dated 14.04.2022 (annexure A/5 to IA) reads as under:
"--i;k voxr gks fd [kkupaniqj jfu;k] dkuiqj nsgkr esa voS/k :i Mai 62225 eh0 Vu Øksfe;e osLV gsrq mÙkjnkbZ 06 m|ksxksa ds fo#) cksMZ ds i= fnukad 19-11-2019 }kjk dqy #i;s 280-125 djksM+ i;kZoj.kh; {kfriwfrZ vf/kjksfir xbZ FkhA m|ksx Lokfe;ksa }kjk ekuuh; ,uthVh esa nk;j vihy la[;k 14]15]16]17 vkSj 18 of 2020 esa fnukad 04-01-2020 dks vkns'k ikfjr fd, x, gSa, ftlds eq[;ka'k fuEuor gSa& "The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.
5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."
mijksä vkns'k fnukad 04-01-2021 ds vuqikyu esa vihydrkZvksa dh lquokbZ gsrq cksMZ eq[;ky; ds i= fnukad 04-02-2021 }kjk lfefr xfBr dh x;h FkhA mä lfefr }kjk fnukad 16-03-2021 dks cksMZ eq[;ky; esa m|ksx Lokfe;ksa dks viuk i{k j[kus gsrq lquokbZ dh x;hA lquokbZ ds nkSjku m|ksx çfrfuf/k;ksa }kjk viuk çR;kosnu çLrqr fd;k x;kA m|ksxksa ls çkIr çR;kosnu ,oa dk;kZy; esa miyC/k vfHkys[kksa ds vk/kkj ij csfld dzkse lYQsV dk mRiknu djus okyh 05 vU; nks"kh bdkb;k¡ fpfUgr dh x;hA mä lHkh 05 bdkb;ksa dks cksMZ }kjk i;kZoj.kh; {kfriwfrZ vf/kjksfir fd;s tkus gsrq dkj.k crkvks uksfVl tkjh fd;k x;kA mä 05 lanfHkZr bdkb;ksa esa ls 02 bdkb;ksa ls çkIr çR;kosnu ds lanHkZ esa {ks=h; vf/kdkjh] dkuiqj ds i= fnukad 16-12-2021 }kjk çkIr vk[;kuqlkj m|ksx lapkyu o"kZ ls tfur dksfe;e osLV ds lqjf{kr fuLrkj.k gsrq Vhå,låMhå,Qå dks gLrkUrfjr fd;s tkus rFkk m|ksx }kjk [kkupUniqj jfu;ksa] dkuiqj nsgkr esa voS/k :i ls dzksfe;e osLV dk fuLrkj.k fd;k tkuk ifjyf{kr ugha gksus dh laLrqfr ds -f"Vxr mä 02 m|ksxksa dks tkjh dkj.k crkvks नो टस dks fu{ksfir fd;k x;k gS rFkk {ks=h; vf/kdkjh] dkuiqj ds i= fnukad 14-04-2022 }kjk çsf"kr vk[;k ds n`f"Vxr 01 bdkbZ 30 ls tfur dzksfe;e oSLV dks mldh lg bdkbZ esa Hk.Mkfjr ik;s tkus ds -f"Vxr mä m|ksx dks tkjh dkj.k crkvks uksfVl dks l'krZ fu{ksfir fd;k x;k gSA orZeku esa [kkupUniqj jfu;k¡] dkuiqj nsgkr esa voS/k :i ls MEi dzksfe;e osLV gsrq mÙkjnk;h 08 bdkb;ksa ds mRiknu ds vk/kkj ij vkidh bdkbZ }kjk voS/k :i ls MEi fd;s x;s dksfe;e osLV dh ek=k 3248.146 eh0 Vu vkadfyr dh x;h gS] ftl gsrq dsUæh; çnw"k.k fu;a=.k cksMZ }kjk fu/kkZfjr xkbMykbu ds vk/kkj ij i;kZoj.kh; {kfriwfrZ :i;s 146166558-00 vkaxf.kr gSA mijksä of.kZr rF;ksa ds -f"Vxr l{ke Lrj ls vuqeksnuksijkUr m|ksx eSllZ अमे लआ dsfe0 çkå fy0 [kkupUniqj jfu;k¡]] dkuiqj nsgkr ij :i;s 146166558-00 ¼चौदह करोड़ इकसठ लाख छाछठ हज़ार पांच सौ अठावन मा ½ i;kZoj.kh; {kfriwfrZ ds :i esa vf/kjksfir dh tkrh gS rFkk funsZf'kr fd;k tkrk gS fd i;kZoj.kh; {kfriwfrZ dh /kujkf'k dks m0 ç0 çnw"k.k fu;a=.k cksMZ ds ;wfu;u cSad v‚Q bf.M;k] foHko [k.M xkserh uxj] y[kuÅ fLFkr cSad ds [kkrk la[;k & 701502010002104 vkbZ0,Q0,l0 dksM &UBIN0570150 esa 15 fnu ds vUnj tek djsa rFkk tek dh x;h /kujkf'k dk lk/; {ks=h; dk;kZy; ,oa cksMZ eq[;ky; esa çLrqr djuk lqfuf'pr djs vU;Fkk dh fLFkfr esa i;kZoj.kh; {kfriwfrZ dh olwyh gsrq Hkw&jktLo dh Hkkafr olwyh dh dk;Zokgh dh tk;sxh] ftldk lEiw.kZ mÙkjnkf;Ro m|ksx Lokeh dk Lo;a dk gksxkA"
English Translation by Tribunal-
"This is to inform that the total environmental compensation of Rs. 280.125 Crore against 06 industries for illegal dump of 62225 MT chromium waste in Khanchandpur Rania, Kanpur Dehat was imposed by Board's letter dated 19.11.2019.
Orders have been passed by Hon'ble NGT on 04.01.2020 in Appeal no. 14,15,16,17 and 18 of 2020 filed by industry owners in NGT whose main points are as under -
"The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.
5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."
In compliance of the above order dated 04.01.2021, the Committee was constituted by the Board vide letter dated 04.02.2021 for the hearing of the appellants. The said hearing was held on 16.03.2021 by committee at the Board Headquarters to hear the side of industries owners. During the hearing, their representations were submitted by the industry representatives. On the basis of representations received from industries and records available in the office, 05 other guilty units were identified for production of Basic Chrome Sulphate. Show cause notices were issued to all the above 05 units by the Board for deposit of environmental compensation. Above 02 units out of the above 05 referred units, representation received and on the basis of the report 31 letter dated 16.12.2021 from the Regional Officer, Kanpur, the generated chromium waste from the year of industry operation has been transferred to TSDF for safe disposal and not reflected the disposed of Chromium Waste in countryside by the industry of Khanchandpur Rani, Kanpur, show cause notice issued to the said 02 industries. In view of the report of Regional Officer, Kanpur letter dated 14.04.2022 that 01 unit was found storing generated chromium waste into its co- unit, therefore, show cause notice issued with condition to the said industry.
Presently based on production of illegally dumped chromium waste by 08 units in Khanchandpur Rania, Kanpur Dehat, your unit has been estimated 3248.146 MT illegally dumped chromium waste for which environmental compensation is estimated Rs. 146166558.00 on the basis of the prescribed guidelines of Central Pollution Control Board Based.
In view of the above-mentioned facts and after approval of the Competent Authority, environmental compensation of Rs. 146166558.00 (fourteen crore Sixty One lakh Sixty six thousand five hundred and fifty eight only) is imposed on the industry M/s Amelia Chemical Pvt., Khanchandpur Rania, Kanpur Dehat and it is directed that the said amount of environmental compensation should be deposited within 15 days in the bank A/c No.- 701502010002104, IFSC code- UBIN0570150 of the Vibhav Khand Gomti Nagar, Lucknow of the bank account of Union Bank of India UP Pollution Control Board and make sure to submit deposited proof of the said amount in the regional office and Board headquarters. Otherwise, action will be taken for recovery of environmental compensation like land revenue, for which the entire responsibility will be of the industry owner himself."
33. Appellant filed reply protesting demand of environmental compensation of Rs. 14,61,66,558/- vide reply dated 04.05.2022 raising following grounds:
"A) No reasons, let alone scientific reasons have been furnished for the determination of quantum of waste and consequent liability. This is contrary to the repeated directives of the Hon'ble NGT.
B) The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have not been furnished. This includes the report and recommendation of the regional officer, referred to in the Notice dt.14.04.2022.
On what basis UPPCB allowed some factories out of 5 additional alleged Units to store waste for 30+ years in bags and that is also without considering the life & quality of those bags. C) The UPPCB has failed to take note of and deal with any of the factual or legal objections raised by the undersigned including the following:
32
(i) That we were forced to sell our factory, as UPPCB did not allow us to do any other business in the factory premises vide RO, Rania letter no. 2467/NOC/09 dt. 12.06.09.
Whereas Waris Chemicals & Heilger Chemicals were allowed to do other mfg. activities, as such these units did not sell their factories if we had not sold our factory, the waste would have been lying in the pits made for it as in case of other 2 units.
(ii) The unit was functional only for a short duration preceding 2005 (2001 to 2005).
(iii) The undersigned had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped.
(iv) The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble NGT in various judicial orders).
(v) There were various other entities operating chromium-based units in the concerned area.
(vi) The entire exercise is highly belated and time barred.
(vii) The direction to collect the penalty by way of arrears of land revenue has no basis in law.
(viii) There is no provision empowering UPPCB to issue direction imputing liability to proprietor/shareholder/director/ manager of a unit which is a company."
34. Appellant also relied on his objections dated 08.11.2021 filed before this Tribunal against report dated 30.09.2021.
35. Appellant has also filed as annexure A/7, copy of Oversight Committee's report dated 22.04.2022 wherein compliance status as on 15.04.2022 and recommendations were given as under:
"COMPLIANCE STATUS AS ON 15.04.2022 S. Directions issued by Concerned Compliance status No Hon'ble NGT Department 1 Finalization of volume of CPCB & A joint inspection of the site chromium dump UPSIDA was carried out by the CPCB & IIT Kanpur along with the officials of the UPSIDA and District Administration on 17.11.2021. As per the joint inspection report, the current and finalized estimate of available waste volume is 1,22,799 m3. The same has been approved by the State Level Monitoring Committee on 04.01.2022.33
The compliance report
submitted by the UPSIDA is
annexed as Annexure I. The
minutes of meeting of the
joint inspection conducted
by the CPCB & IIT Kanpur is
annexed as Annexure II.
2. Preparation of roadmap UPPCB & In spite of repeated
for remedial action by CPCB reminders, no information
five-member expert has been furnished by the
Committee as nodal agencies. Informally
Constituted by Hon'ble it is learnt that no such
NGT in order dated meeting has been held so
23.11.2021. far.
3. Recovery of EC imposed UPPCB The UPPCB had imposed an
on erring industries EC of Rs. 280 Cr against six
defaulting industries
engaged in production of
Basic Chrome Sulphate
which were responsible for
the illegal dumping of
Chromium Waste at Rania,
Kanpur on 19.11.2019.
On 16.03.2021, the UPPCB
had identified 5 more such
industries against whom
the show-cause notices
were issued by the Board.
Against the 2 industries,
viz. M/s Kalina Chemicals
Pvt. Ltd. and M/s Bharat
Chemical Udhyog, the
Board has imposed an EC
of Rs. 18,02,72,088.00 and
Rs. 1,40,07,150.00
respectively. After
considering the replies from
3 units viz. M/s Khanna
Vivek Chemicals Pvt. Ltd.
C30D, Site-I, Panki, Kanpur
Nagar, M/s Unichem India,
Village Malo, GT Road,
Chaubepur, Kanpur Nagar
and M/s Rahman
Industries Ltd, 1002, 1003,
Akrampur, Chakarmpur,
show cause notices have
been revoked.
The details of EC imposed
on the erring industries are
mentioned in Annexure III.
4. Recovery of EC imposed UP Jal Nigam The case is still pending in on UP Jal Nigam the Hon'ble Supreme Court.
The compliance report and documents submitted by the UP Jal Nigam in this 34 regard is annexed as Annexure IV.
5. Status on 20 MLD CETP NMCG As per the compliance in Jajmau report submitted by the NMCG on 24.03.2022, the overall progress of the project is 43.47% which is only 13.36% more than the previous progress of June 2021. Now the target date for completion has been shifted 02.02.2022 to 02.06.2022.
The detailed progress report submitted by the NMCG is annexed as Annexure V.
6. Action taken on non- UPPCB The UPPCB vide its letter compliant CETP in dated 20.04.2022 has Jajmau imposed an EC of Rs.
11,62,500 for non-
compliant CETP for the
period of 04.06.2021 to
05.04.2022 against the
Ganga Pollution Control
Unit, UP Jal Nigam.
The letter issued to the UP
Jal Nigam in this regard is
annexed as Annexure VI.
Thus, it is clear from the reports of the concerned departments that there is absolutely no progress in actual removal of the chromium dump and only paperwork is being done.
IV. RECOMMENDATIONS BY OVERSIGHT COMMITTEE In view of the above, we recommend as follows:
1. The Chief Secretary, UP may be directed to hold a meeting with the nominees of MoEF&CC, CPCB, NMCG, UPPCB and District Magistrates of Kanpur Dehat and Kanpur Nagar as mentioned in the order of the Hon'ble NGT dated 23.11.2021 at the earliest so that the actual work of scientific disposal of chromium dump is started without any further delay and completed in the shortest possible time. The Chief Secretary, UP may also be directed to monitor the execution of the plan every month and forward a monthly progress report in this regard to the Oversight Committee for the submission of quarterly progress report to the Hon'ble NGT. The Chief Secretary may further be directed to specify the date when the actual work for removal of chromium dump shall start.
2. The progress of 20 MLD CETP which is under construction in Jajmau is far from satisfactory (only 13.36% in last 9 months and cumulative progress of 43.47% only till now). Now the timelines for completion of the project has been shifted from February 2022 to June 2022. Considering the present pace of progress, it does not seem to be possible. The Chief Secretary may be directed to include 35 the monitoring of this project also in his monthly meeting on environmental matters and send the minutes of the meeting to the Oversight Committee for the submission of quarterly progress report to the Hon'ble NGT.
3. The Member Secretary, UPPCB may be directed to ensure that the compensation imposed on the erring industries/agencies is realized without any further delay.
4. Though there are mechanisms available to recover EC from the defaulter industries which are in operation, for closed down units when efforts are made to recover EC as arrear of land revenue, due to judicial pronouncement that EC cannot be recovered as arrear of land revenue, the recovery becomes almost impossible.
The Central Government may be directed to amend the relevant Act to include the recovery of EC as arrear of land revenue to facilitate the recovery from the closed units.
5. The Member Secretary, UPPCB may be directed to take effective actions against erring officials/industries for continued pollution of the river Ganga through regular monitoring of the functionality of the CETP and STPs under various provisions of the Environmental laws."
Compliance Report dated 28.07.2022 filed on 01.08.2022 by UPPCB:
36. Pursuant to Trinunal's order dated 12.11.2021, RO (Incharge), Kanpur Dehat submitted a further compliance report dated 28.07.2022 vide e-mail dated 01.08.2022. It is pointed out in the report that five additional units were issued show cause notices whereof four had submitted their reply and the fifth one i.e., M/s. Kaleena Chemicals Pvt.
Ltd. did not submit any reply. In respect of two units namely, M/s. Khanna Vivek Chemicals Pvt. Ltd. and M/s. Unichem India, it was found that they have properly disposed of all generated hazardous waste into common TSDF and no waste was dumped at Khan Chandpur Rania, Kanpur Dehat site by the said units. The said units also modified their manufacturing process so that no BCS waste is generated. On the basis of the report and recommendations of RO UPPCB, Kanpur Dehat, show cause notices issued to the aforesaid two units were revoked with the approval of Competent Authority, on 14.01.2022. Further, in respect of M/s. IGS Chemicals Pvt. Ltd., Kanpur Nagar, 36 show cause notice dated 29.09.2021 was revoked on 14.04.2022 recording following findings:
"9. ... production was done only from 2003 to 2005 and during that period about 440.695 MT chromium purchased and 881.30 BCS produced and 111.80 MT waste was generated. The waste 111.80 MT has been sent to its sister unit M/s Waris Chemicals Pvt Ltd, Umran, Rania, Kanpur Dehat and safely stored under covered shed. Regional Officer, Kanpur Dehat and Regional Officer, Kanpur Nagar has jointly inspected the unit M/s Wails Chemicals Pvt Ltd, Umran, Rania, Kanpur Dehat for verification of stored waste quantity. Waste about 110 to 115 MT in plastic bags was found stored under covered shed. Regional Officer, Kanpur has recommended for revocation of show cause notice to M/s IGS Chemicals Pvt Ltd. Accordingly, the show cause notice dated 29.09.2021 issued to M/s IGS Chemicals Pvt Ltd has been revoked on 14.04.2022."
37. Compensation was also revised in the light of further facts came to the notice of Committee comprising Mr. Radhey Shyam, Mr. J.P. Maurya, Dr. Anil Kumar Mathur, Environmental Engineers, Lucknow and Mr. Ashutosh Pandey, A.E.E/RO (Incharge), Kanpur Dehat. The findings from para 10 and onwards and revised assessment chart given in the report is reproduced as under:
"10. That M/s Rahman Industries Ltd, (Old Name Bharat Chemical Udhyog) 1002, 1003, Akrampur, Chakarmpur, Unnao has also submitted its reply with respect to issued show cause notice. The main content of the reply was that they have purchased the closed unit M/s Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao in Year 2004. They have taken membership of common TSDF for disposal of hazardous waste since start of production in their unit and have obtained relevant authorization under HWM Rule and relevant consent to operate under Air and Water Act. Their unit is law abiding unit and the actual defaulter was the old unit M/s Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao which was closed by UPPCB and has also provided the name and address of the owners of the old unit. U.P. Pollution Control Board has directed Regional Officer, Unnao to go through the representation and submit the report, taking into cognizance the direction of Hon'ble NGT while deciding the representation. Regional Officer, Unnao has submitted the report and has confirmed that M/s Rahman Industries Ltd. has purchased the above unit in Year 2004 when the unit was lying closed as per direction of Board. Regional Officer, Unnao has also informed that the unit M/s Rahman Industries Ltd, 1002, 1003, Akrampur, Chakarmpur, Unnao is complying unit. On the basis of recommendation of Regional Officer, Unnao and reply of industry, show cause notice issued against M/s Rahman Industries Ltd, 1002, 1003, Akrampur, Chakarmpur, Unnao has been 37 revoked on 17.01.2022 and fresh show cause notice has been issued against the owners of actual defaulter unit M/s Bharat Chemical Udhyog vide letter dated 17.01.2022.
11. That Regional Officer, Unnao has sent the report dated 13.04.2022 informing that M/s Bharat Chemical Udhyog has submitted representation on 13.04.2022. Applicant has informed that the land has been given on lease to M/s Bharat Chemical Udhyog by Smt. Tarannum Fatima in 1997. As per representation unit was operated for total 567 days and due to infelicitous, industry had stopped production. Thereafter Smt. Tarannum Fatima has sold the industry along with office and Tin Shed to M/s Rahman Export Pvt Ltd, Wajidpur, Jajmau, Kanpur on 28.06.2004. Applicant has submitted the details showing that during production since 01 July 1999 to 31 December 2003, the industry was operated for 567 days and 226.80 MT hazardous waste was generated.
12. That the records available in the Regional Office has been scrutinized and as per office records during January 2001 to March 2001, industry has been operated for total 33 days, which matches with the details submitted by the industry. For rest period, the detail is not available in the office records. As per the inspection report dated 28.08.1999, the hazardous waste generated from the industry is 15 Ton per month. Thus, on the basis of 25 days per month operational period and hazardous waste generation 15 Ton per month, 311.27 MT hazardous waste is generated in 567 days.
13. As per the information submitted by unit, the waste generated in 567 days has been stored in 03 pucca tanks of size 11×7×5 ft-02 Nos. and 13×7×5 ft. The size of first two tanks has been verified through the inspection report dated 15.02.2001 and 07.04.2001. But when the unit was sold to M/s Rahman Exports Pvt. Ltd., neither such storage was found as per the statement of M/s Rahman Exports Pvt Ltd., nor any proof was provided regarding disposal of stored hazardous waste to Common TSDF. So as per recommendations of Regional Officer, Unnao, Environmental Compensation was imposed against the unit for disposal of 311.27 MT chromium waste.
14. All the 05 units, who had gone to Hon'ble Tribunal for filing the appeal, have not given any record regarding Form-1 and Form-13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises. The relevant reports are attached as Annexure-1
15. This shows that the concerned industries were definitely responsible for disposal of generated hazardous waste to the chromium dump site. Moreover, this is also a fact that this dumped hazardous waste has impacted the soil due to leachate, which has inturn increased the size of dumped hazardous waste. Finally, the Environmental Compensation against total 08 units responsible for dumping of chromium waste 38 have been imposed on dated 14.04.2022 in the ratio of their production and operation period and details of existing storage of chromium waste inside the industrial premises, which is still not disposed in some units.
Industries could not object on the imposition amount because Environmental Compensation imposed is on true basis and industry did not submit any proof against facts. Imposition of Environmental Compensation is based upon the true facts and on official records in the light of natural justice. On the basis of above facts it is recommended to reject industry representation letter Dated 23/05/2022.
The details of Environmental Compensation imposed against the unit are as follows:
"
Sr Name & Production Operational Assessed quantity Revised Revised No Address of capacity Period of dumped Assessed Environmental Industry (MTD) Chromium waste quantity of Compensation as per percentage dumped (in Rs.) of production. (MT) Chromium waste after assessment of stored quantity in the premises.
(MT)
1 M/s 4 1990 to उ पादन मता के आधार 17392.854 87,69,99,345
Cerulean Oct 2005 +[28.092*4652/2
पर कुल वे ट का लगभग
Chemicals (180 8.092+8.779+4.6
Pvt Ltd, month) 28.092 तशत ( ो मयम 82+15.021+5.77
Khanchadpur वे ट 17.392.854 एम.ट .) 4)]=
Rania, 19488.874
Kanpur
Dehat.
2. M/s Waris 3.5 1994 to उ पादन मता के आधार 11329.512- 44,34,53,042
Chemicals Oct 2005 1475=
पर कुल वे ट का 18.299
Pvt Ltd. NOC 9854.512
Khanchandpur dated तशत ( ो मयम वे ट)
Rania, 5-9-94 लगभग 11329.512 एम.ट .)
Kanpur (134
Dehat month)
उ योग प रसर म लगभग
1475 एम.ट ो मयम
वे ट नर ण के समय
भ डा रत पाया गया।
िजसमे 111.8 एम. ट .
मेसस आई. जी . एस.
के मकल ाो० ल० से
ज नत वे ट है।
उ त त य से प ट है क
उ योग वारा लगभग
9854.512 एम .ट .
ो मयम वे ट को अवैध
प से फेका गया है ।
3. M/s 3 1999 to उ पादन मता के आधार 5435.267+[8.779 27,40,62,295
Chandni Oct 2005 *4652/(28.092+8.
पर कुल वे ट का लगभग
chemicals NOC 779+4.682+15.0
Pvt Ltd, dated 8.779 तशत ( ो मयम 21+5.774)]=
Khanchandpur 12-8-99 वे ट लगभग 5435.267 6090.273
rania, (75 एम.ट .)
Kanpur month)
Dehat.
4. M/s Amelia 3 2001 to उ पादन मता के आधार 2898.809+[4.682 14,61,66,557
Textiles & Oct 2005 *4652/(28.092+8.
पर कुल वे ट का लगभग
39
4. M/s Amelia 3 2001 to उ पादन मता के आधार 2898.809+[4.682 14,61,66,557
Textiles & Oct 2005 *4652/(28.092+8.
पर कुल वे ट का लगभग
Chemicals NOC 779+4.682+15.0
Pvt Ltd, 23, dated 4.682 तशत ( ो मयम 21+5.774)]=
Khanchadpur, 11-09- वे ट लगभग 2898.809 3248.146
Rania, 2001 एम.ट .)
Kanpur (40
Dehat. month)
5. M/s Heilger 4 1995 to उ पादन मता के आधार 11981.744- 39,62,13,484
chem Pvt Oct 2005 3177=
पर ज नत कुल वे ट का
Ltd, vili- (124 8804.744
Chiraura months) 19.325 तशत लगभग
Raipur, 11981.744 एम.ट
Rania, ो मयम वे ट
Kanpur
Dehat. उ योग प रसर म लगभग
3177 एम .ट .
ो मयम वे ट
नर ण के समय
उ त त य से प ट है क
उ योग वारा लगभग
8804.744 एम .ट .
ो मयम वे ट को अवैध
प से फेका गया है ।
6. M/s 3.5 31-08-96 उ पादन मता के आधार 9300.346+[15.02 46,89,51,039
Rukmani to Oct 1*4652/(28.092+
पर कुल वे ट का 15.021
Chemicals 2005 8.779+4.682+15.
Pvt Ltd. NOC तशत ( ो मयम वे ट 021+5.774)]=
Rania, dated लगभग 9300.346 10421.134
Kanpur 31-08-96 एम.ट .)
Dehat (110
month)
7. M/s 2 24-09- उ पादन मता के आधार 3575.198+[5.774 18,02,72,088
Kaleena 1999 *4652/(28.092+8.
21-10-2005
पर कुल वे ट का 5.774
Chemicals, 779+4.682+15.0
Pvt. Village (74 तशत ( ो मयम वे ट 21+5.774)]=
Malo, GT months) लगभग 3575.198 4006.046
Road, एम.ट .)
Chaubepur,
Kanpur
Nagar
8. M/s Bharat - 567 days उ पादन के आधार पर 311.270 14,00,71,50
Chemical
ज नत ो मयम वे ट
Udhyog by
Smt. लगभग 311.270 एम.ट .
Tarannum
Fatima
Total 62,225 MT 280,01,25000
"
English translation by Tribunal-
"
Name & Production Operational Assessed quantity Revised Revised
Address of capacity Period of dumped Assessed Environmental
Industry (MTD) Chromium waste as quantity of Compensation
per percentage of dumped (in Rs.)
production. (MT) Chromium
waste after
assessment of
stored quantity
in the
premises. (MT)
1 M/s 4 1990 to On the basis of 17392.854 87,69,99,345
Cerulean Oct 2005 production capacity +[28.092*4652/
Chemicals (180 28.092 percent of total 28.092+8.779+4
Pvt Ltd, month)
40
Pvt Ltd, (180 waste (Chromium .682+15.021+5.
Khanchadpur month) waste 17392.854 MT) 774)]=
Rania, 19488.874
Kanpur
Dehat.
2. M/s Waris 3.5 1994 to On the basis of 11329.512- 44,34,53,042
Chemicals Oct 2005 production capacity 1475=
Pvt Ltd. NOC 18.299 percent of total 9854.512
Khanchadpur dated waste (Chromium
Rania, 5-9-94 waste 11329.512
Kanpur (134 Metric Ton)
Dehat month)
In the campus of
industry approx 1475
MT chromium waste
storage has been
found during the
inspection. Out of
which 111.8 MT was
generated by Masers
I.G.s. Chemcial Pvt.
Ltd.
From the above fact it
is clear that almost
9854.512 MT
Chromium waste has
been thrown illegally.
3. M/s 3 1999 to On the basis of 5435.267+[8.77 27,40,62,295
Chandni Oct 2005 production capacity 9*4652/(28.092
chemicals NOC 8.779 percent of total +8.779+4.682+
Pvt Ltd, dated waste (Chromium 15.021+5.774)]
Khanchadpur 12-8-99 waste 5435.267 MT) =
Rania, (75 6090.273
Kanpur month)
Dehat.
4. M/s Amelia 3 2001 to On the basis of 2898.809+[4.68 14,61,66,557
Textiles & Oct 2005 production capacity 2*4652/(28.092
Chemicals NOC 4.682 percent of total +8.779+4.682+
Pvt Ltd, 23, dated waste (Chromium 15.021+5.774)]
Khanchadp 11-09- waste 2898.809 MT). =
ur Rania, 2001 3248.146
Kanpur (40
dehat. month)
5. M/s Heilger 4 1995 to On the basis of 11981.744- 39,62,13,484
Chem Pvt Oct 2005 production capacity 3177=
Ltd, Vill- (124 19.325 percent of total 8804.744
Chiraura months) waste produced out of
Raipur, which approx
Rania, 11981.744 MT
Kanpur Chromium waste.
Dehat.
In the campus of
industry approx 3177
MT chromium waste
storage has been
found during the
inspection.
From the above fact, it
is clear that almost
8804.744 MT
Chromium waste has
been thrown illegally.
6. M/s 3.5 31-08-96 On the basis of 9300.346+[15.0 46,89,51,039
Rukmani to Oct production capacity 21*4652/(28.09
Chemicals 2005 15.021 percent of total 2+8.779+4.682
Pvt Ltd. NOC waste (Chromium +15.021+5.774)
Rania, dated waste 9300.346 MT). ]=
Kanpur 31-08-96 10421.134
Dehat (110
month)
7. M/s 2 24-09- On the basis of 3575.198+[5.77 18,02,72,088
Kaleena 1999 production capacity 4*4652/(28.092
Chemicals, 5.774 percent of total +8.779+4.682+
Pvt. Village
41
Malo, GT 21-10-2005 waste (Chromium 15.021+5.774)]
Road, (74 waste 3575.198 MT). =
Chaubepur, months) 4006.046
Kanpur
Nagar
8. M/s Bharat - 567 days On the basis of 311.270 14,00,71,50
Chemical production Chromium
Udhyog by waste produced
Smt. 311.270 MT).
Tarannum
Fatima
Total 62,225 MT 280,01,25000
"
38. The above chart shows that environmental compensation in respect to appellant was re-revised to Rs. 14,61,66,557/- on 3248.146 MT quantity of chromium waste.
Documents appended to Report dated 28.07.2022:
39. Inspection Report dated 02.09.2003 (p/426 of memo of appeal):
The above inspection report shows that inspection of the premises of appellant was made on 21.08.2003. Besides other, it was found that appellant was generating hazardous waste. For temporary storage of waste, a pucca tank was constructed in the factory premises wherein only partial waste was found stored and the waste was found dumped, scattered in the nearby area. Inside the factory also, the waste was kept on the soil and in violation of the instructions of UPPCB, the waste was being dumped outside the factory premises on road side and on the land in the vicinity. Action under EP Act, 1986 was also recommended. The extract of the inspection reads as under:
"1- m|ksx }kjk ØksekbV vks,] lksMk ,s'k] dkfLVd lYQ~;wfjd ,flM dk iz;ksx dPps eky ds :i esa dj csfld Økse lYQsV dk mRiknu 2-0 Vu izfr fnu fd;k tk jgk gSA 2- m|ksx esa ty dk iz;ksx ?kjsyw iz;kstu ,oa mRiknu izfØ;k esa fd;k tkrk gS] m|ksx esa U;wfj;y bts'ku dh izfØ;k ds nkSjku vfur mRizokg dks VSad ds ek/;e~ ls iqu% iz;ksx dj fy;k tkrk gSA 3- m|ksx esa dPps eky esa xje djus gsrq LFkkfir HkV~Bh esa bZ/ku ds :i ds 3-0 Vu izfrfnu dks;ys dk iz;ksx fd;k tkrk gSA HkV~Bh ls lEcU/k fpeuh dh Å¡pkbZ Hkwry ls yxHkx 30 eh0 gSA m|ksx esa ,d Cok;yj LFkkfir gS ftlesa bZ/ku ds :i esa 2-0 Vu izfr fnu jkbl gLd dk iz;ksx fd;k tkrk gS ok;q iznw"k.k fu;a=.k O;oLFkk gsrq lkbDyksu MLV dysDVj ds lkFk 30 eh0 Å¡ph O;oLFkk LFkkfir gSA 4- m|ksx esa Økse;qDr ifjladV;e Bksl vif'k"V tfur gksrk gS] ftlds vLFkkbZ Hk.Mkj.k gsrq m|ksx }kjk ifjlj esa gh ,d iDdk VSad LFkkfir fd;k x;k gS] ftlesa vkaf'kd osLV ik;k x;kA m|ksx }kjk osLV dks vkl&ikl ds {ks=ksa esa Mky fn;k tkrk gSA 42 5- m|ksx ifjlj esa Hkh Økse;qDr osLV dks dPph Hkwfe ij j[kk tkrk gS rFkk m|ksx }kjk cksMZ ds vkns'kksa dh vogsyuk dj osLV dk fuLrkj.k m|ksx ifjlj ds ckgj jksM lkbM rFkk vkl&ikl dh Hkwfe ij Mkyk tk jgk gSA 6- dkuiqj nsgkr dqEHkh esa ifjladVe; vif'k"V lkewfgd mipkj O;oLFkk LFkkfir djus gsrq dkuiqj iznw"k.k fu;a=.k lfefr dks Hkwfe vkoafVr dh tk pqdh gS ijUrq fodkl dk;Z ds lEcU/k esa vHkh dksbZ dk;Zokgh ugha dh x;h gSA mijksDr ifjLFkfr;ksa esa m|ksx ds fo:) i;kZoj.k laj{k.k vf/kfu;e 1986 ds varxZr vko';d dk;Zokgh fd;k tkuk mfpr gksxkA"
"1. The industry produces 2.0 tonnes per day of basic chrome Sulphate Chromite ore, Soda ash, Caustic Sulfuric Acid are used as raw material.
2. In the industry, water is used in the domestic purpose and production process. In the industry, during the process of neutral injetion, those energy is re-used through the tank.
3. For heating the raw material in the industry, 3.0 tonnes of coal per day is used as fuel in the established furnace. The height of the chimney in relation to the furnace is about 30 m from the ground level. In the industry, Boiler is established, in which 2.0 ton per day rice husk is used as fuel. 30-meter-high system of cyclone dust collector is established for air pollution control system.
4. Chromated hazardous solid waste is generated in the industry, for which a concrete tank has been set up by the industry in the premises itself for temporary storage, in which only small amount of waste is found. The waste is dumped in the surrounding area by the industry.
5. Even in the industry premises, chrome-containing waste is kept on the crude land, disobeying the board's order, the waste is being disposed of on the road side and surrounding land outside the industry premises.
6. In Kanpur-Dehat Kumbhi hazardous waste group treatment system is to be set up, land has been allotted to the Kanpur Pollution control committee, but the development work is yet to be done. No action has been taken.
In the above circumstances, it would be appropriate to take necessary action against the industry under the Environment Protection Act, 1986."
(English Translation by Tribunal)
40. Letter dated 04.09.2003 (p/425 to memo of appeal): The above letter was addressed to Chief Environment Officer, Circle-2, UPPCB, Lucknow sent by RO UPPCB pursuant to inspection dated 02.09.2003. It was stated that despite several reminders and instructions, the unit was continuously violating directions and dumping waste outside the factory premises on the road side and on the land in the vicinity, hence, 43 recommendation was made for action under EP Act, 1986. The contents of the letter are reproduced as under:
"d`i;k mijksDr fo"k;d vius i= la0 ,Q 18400@lh&2@lk0 gstkMZ~l&171@2003 fnukad 17-07-03 dk lUnHkZ ysus dk d"V djsaA mDr ds lUnHkZ esa eS0 vfefygk VsDlVkbYl izk0 fy0 jfu;ka] dkuiqj nsgkr dk fujh{k.k bl dk;kZy; ds lgk0 i;kZ0 vfHk;Urk ,oa voj vfHk;Urk }kjk fd;k x;kA m|ksx }kjk csfld Økse lYQsV dk mRiknu fd;k tkrk gSA m|ksx }kjk mRiknu izfØ;k ls fudyus okys Økse ;qDr osLV ds fuLrkj.k gsrq m|ksx ifjlj esa vLFkkbZ Hk.Mkj.k gsrq iDdk VSad cuk;k x;k gS] ijUrq m|ksx }kjk mDr gstkMZ~l osLV dks mDr VSad esa u Mkydj jksM lkbM o vkl&ikl ds vU; {ks=ksa esa Mkyk tk jgk gS] ftl gsrq cksMZ }kjk dbZ ckj funsZ'k Hkh fn;s tk pqds gSa] ijUrq m|ksx }kjk cksMZ ds funsZ'kksa dk vuqikyu ugha fd;k tk jgk gSA jk"Vªh; jkt ekxZ }kjk dkyih ekxZ dks pkj ysu cukus dk dk;Z izxfr ij gS] ijUrq jksM lkbM ij osLV dk Mkys tkus ls fuekZ.k dk;Z esa vojks/k mRiUu gks jgk gSA xzke dqEHkh vdcjiqj jkfu;ka esa gstkM~Zl osLV ds mfpr fuLrkj.k gsrq dkuiqj iznw"k.k fu;a=.k lfefr }kjk lkewfgd gstkMZ~l osLV LFky ij vHkh rd dksbZ dk;Zokgh izkjEHk ugha dh x;h gSA mijksDr ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, m|ksx ds fo:) i;kZoj.k laj{k.k vf/kfu;e 1986 ds vUrxZr dk;Zokgh djus dh laLrqfr lfgr vk[;k layXu dj izsf"kr dh tk jgh gSA"
"Kindly refer to your letter No. F. 18400/C-2/Hazardous- 171/2003 dated 17.07.03. On the above subject, M/s Amelia Textiles Pvt. Ltd., Rania, Kanpur, Dehat has been inspected by Assistant Engineer and Junior Engineer. The industry produces basic Chrome Sulphate. A concrete temporary tank has been made by the industry in the campus for storage of Chrome waste coming out of the production process by the industry, but the said hazardous waste is being dumped by the industry in the road side and nearby surrounding and not in abovementioned tank for which instructions have been given several times by the Board, but the instructions of Board are not being followed. The work of four-lane of Kalpi Marg by the National Highway is being done but due to dumping of waste on the road side the construction work is getting hampered. No action has yet been initiated by the Kanpur Pollution Control Committee for the proper disposal of hazardous waste material in village Kumbhi Akbarpur, Rania.
Keeping in view the above circumstances, the report is being attached along with the recommendation to take action under the Environmental Protection Act, 1986 agianst the industry."
(English Translation by Tribunal)
41. Letter dated 19.07.2005 (p/428 of memo of appeal): The above letter shows that unit was closed by order dated 20.01.2005. Later, closure order was suspended for eight weeks on certain conditions vide order dated 12.08.2005. However, during inspection held on 19.09.2005, it was found contravening conditions of the suspension of closure order and, therefore, recommendation was made by RO UPPCB to cancel suspension of closure order and pass closure order. Contents of the letter dated 44 19.07.2005 are reproduced as under:
"mDr m|ksx ds fo:) tkjh cUnh vkns'k fnukad 20-01-2005 dks cksMZ eq[;ky; ds i= la[;k ,Q 49683@lh&2@,p-@ds&02@05 fnukad 12-08-2005 }kjk vkB lIrkg ds fy, l'kZr fuyfEcr fd;k x;k FkkA m|ksx dk fujh{k.k bl dk;kZy; ds vf/kdkfj;ksa }kjk fnukad 19-09- 2005 dks fd;k x;kA fujh{k.k vk[;k layXu gSA fujh{k.k vk[;k ds vuqlkj cUnh vkns'k ds fuyEcu i= esa fufgr 'krksZa dk mYya?ku fd;k tk jg gSA vr% m|ksx dks tkjh fuyEcu vkns'k dks fujLr djrs gq, iwoZ esa tkjh cUnh vkns'k dks izHkkoh djus dh laLrqfr dh tkrh gSA"
"The closure order issued against the said industry dated
20.01.05 was conditionally suspended for eight weeks vide Board Headquarter's letter No. F 49683/C-2/H/K-02/05 dated 12.08.05. The inspection of the industry was done by the officials of this office on 19.09.05. Inspection report is attached. According to the inspection report, the conditions contained in the letter of suspension of the arrest order are being violated.
Therefore, canceling the suspension order issued to the industry, it is recommended to give effect to the closure order issued earlier."
(English Translation by Tribunal)
42. Inspection report dated 19.09.2005 (p/429 of memo of appeal):
The said inspection was made by a team of Assistant Environment Engineer and Junior Engineer on 19.09.2005. The unit was found running though no consent under Water Act 1974/Air Act 1981/authorisation under HWMH Rules, 1989 was obtained. The appellant had also not taken steps for controlling air pollution. No steps were taken for removal of hazardous waste already dumped illegally and in the factory premises, on an open platform, hazardous waste was found stored, quantity whereof was estimated as 46 MT. It was also said that the temporary storage tank constructed in the factory premises was not used for dumping hazardous chromium waste. On the contrary, it was found filled with rain water. The contents of the inspection dated 19.09.2005 are reproduced as under:
"m|ksx ds fo:) tkjh cUnh vkns'k dks cksMZ eq[;ky; ds i= la[;k ,Q 49683@lh&2@,p@ds&02@2005 fnukad 12-08-2005 }kjk 8 lIrkg ds fy, l'krZ fuyfEcr fd;k x;k gSA r~rØe esa eS0 vesfy;k VsDlVkbYl dsfedYl izk0 fy0] 23 [kkupUnziqj] jfua;k] dkuiqj nsgkr dk fujh{k.k v/kksgLrk{kjdrkZvksa }kjk fnukad 19-09-2005 esa fd;k x;kA fujh{k.k ds le; m|ksx mRiknujr ik;k x;k rFkk Jh lUrks"k ik.Ms; ¼Mk;jsDVj½ m|ksx izfrfuf/k ds :i esa mifLFkr FksA 'krkZsa dh vuqikyu fLFkr fuEuor~ gSA 45 1- m|ksx }kjk lgefr ty@lgefr ok;q@izkf/kdkj izkIr ugha fd;k x;kA fujh{k.k ds le; m|ksx mRiknujr ik;k x;k gSA 2- m|ksx esa izLrko ds vuq:i ok;q iznw"k.k fu;a=.k la;U= dh LFkkiuk ugha ik;h xbZ gS rFkk mRlftZr xSlks dh vuqJo.k vk[;k izLrqr ugha dh xbZ gSA 3- xzke [kkupUnziqj jfu;ka] dkuiqj nsgkr esa iwoZ esa voS/k :i ls Mkys x;s ifjladVe; vif'k"Vksa dks lkQ djk;s tkus ds ifjizs{; esa izxfr 'kwU; ik;h xbZ gSA 4- m|ksx izfrfuf/k }kjk cSad xkjUVh tek ds laca/k esa vfHkys[k izLrqr djus esa vleFkZrk O;Dr dh xbZ gSA vr% cSad xkjUVh tek gksus dh iqf"V eq[;ky; Lrj ls visf{kr gSA 5- fujh{k.k ds le; ifjladVe; vif'k"V gsrq cuk;s x;s vLFkkbZ Hk.Mkj.k VSad esa o"kkZ dk ty Hkjk ik;k x;k gSA 6- ifjladVe; vif'k"V gsrq cuk;s x;s vLFkkbZ Hk.Mkj.k VSad dks iz;ksx esa ugha yk;k x;k gSA fujh{k.k ds le; m|ksx ifjlj esa ifjladVe; vif'k"V [kqys IysVQkeZ ij Hk.Mkfjr ik;k x;k gSA bl Hk.Mkfjr ifjladVe; vif'k"V dh vuqefr ek=k yxHkx 46 eh0 Vu vkadh xbZ gSA mijksDrkuqlkj cksMZ ds vkns'k la[;k ,Q 49683@lh&2@ds&02@2005 fnukad 12-08- 2005 dk mYya?ku gSA vr% iwoZ fuxZr cUnh vkns'k fnukad 20-01-2005 dks izHkkoh djus rFkk fu;ekuqlkj cSad xkjUVh t+Cr djus dh laLrqfr fopkjkFkZ ,oa vko';d dk;Zokgh gsrq lknj izLrqr gSA"
"The closure order issued against the industry has been conditionally suspended for 8 weeks vide Board Headquarter's letter no. 49683/C-2/H/K-02/2005 dated 12.08.05. In the meanwhile, M/s Amelia Textiles Chemicals Pvt. Ltd., 23 Khanchandrapur Rania, Kanpur Dehat was inspected by the undersigned on 19.09.2005. At the time of inspection, the industry was found to be in production and Mr. Santosh Pandey (Director) was present as the industry representative. The status of compliance with the conditions is as follows.
1. Consent for Water/consent for air/authorization was not obtained by the industry. The industry has been found to be in production at the time of inspection.
2. Installation of air pollution control plant has not been found in the industry as per the proposal and the monitoring report of the emitted gases has not been submitted.
3. Zero progress has been found in the perspective of cleaning illegally earlier dumped wastes in village Khanchandrapur, Rania, Kanpur Dehat.
4. Inability has been expressed in respect to submit records regarding bank guarantee deposit by industry representative. Therefore, confirmation of deposit of bank guarantee is required from the Headquarter level.
5. At the time of inspection, rain water has been found filled in the temporary storage tank made for hazardous waste.
6. The temporary storage tank made for hazardous waste has not been put to use. At the time of inspection, hazardous waste has been found stored on an empty platform in the industrial premises. The estimated quantity of this stored hazardous waste has been estimated about 46 MT.
As above, there is a violation of Board's order number F 49683/ C-2/K-02/2005 dated 12.08.05. Therefore, the recommendation to 46 give effect to the previously issued closure order dated 20.01.05 and confiscate the bank guarantee as per the rules, for consideration and necessary action."
(English Translation by Tribunal)
43. Inspection dated 09.06.2006 (p/431 of memo of appeal): This inspection was made by Shri U.C. Sharma, Assistant Environmental Engineer and Shri B.K. Singh, Junior Engineer. The inspection report says that closure order was passed on 06.10.2005, pursuant whereto the unit was sealed on 10.11.2005. At the time of inspection, three trucks were found inside the factory premises containing chromite ore brought from Orissa. Grinding, leaching and acidification work of chromite ore (raw material) was found continuing in the factory premises. For manufacture of BCS, chromite ore and soda ash was being mixed manually and roasting work was also being done in the supporting unit namely M/s. R.A. Chemicals (Globe Chemical Industries), 23 Khandchandpur, Rania, Kanpur Dehat. Appellant unit as well as M/s. R.A. Chemicals (Globe Chemical Industries) are adjacent to each other. NOC was issued in favour of M/s. R.A. Chemicals on 08.01.2003 for production of 2.6 MT/day of sodium sulphate but the unit has not obtained any consent yet it was running. Two roasting furnaces and one baby boiler were found running which were being used for manufacturing BCS. With regard to hazardous waste, the condition of storage was found as it was earlier and no attempt was made for its safe storage. Recommendation was made for closure of M/s. R.A. Chemicals and for violation of condition of closure, action was recommended against appellant's unit. Contents of inspection note dated 09.06.2006 are reproduced as under:
"mDr m|ksx dk fujh{k.k v/kksgLrk{kjdrkZvksa }kjk fnukad 09@06@06 esa fd;k x;kA fujh{k.k ds le; Jh ds0lh0 vxzoky] Mk;jsDVj & eS0 fgYtj dSe izk0fy0 Jh lq'khy pkS/kjh & vf/kd`r izfrfuf/k&eS0 ;wfudse bf.M;k izk0fy0] Jh vfuy [kUuk & Mk;jsDVj & eS0 [kUuk foods dsfedYl izk0fy0] Jh lat; NkcM+k & Mk;jsdVj & dyhuk dsfedYl izk0fy0 rFkk Jh larks"k ik.Ms; & Mk;jsDVj eS0 vesfygk VsDlVkbYl izk0fy0 fujh{k.k ds le; mifLFkr FksA 47 ¼1½ mDr m|ksx dh cUnh dk vkns'k cksMZ eq[;ky; ds i= la[;k ,Q 5132@lh&2@gStk0@ds&174@05 fnukad 06@10@05 }kjk tkjh gSA mDr vkns'k ds vuqikykukFkZ m|ksx dks fnukad 10@11@05 esa lhy@cUn fd;k x;k FkkA fujh{k.k ds le; m|ksx esa rhu Vªdkas dks ik;k x;k gSA bu Vªdks dk uEcj Øe'k% ;w0ih0 78 ,0Vh0 5418] vks0vkj0&02 ,e0 9923 rFkk ;w-ih- 78 & ,0Vh0 7298 uksV fd;k x;k gSA bu Vªdksa }kjk m|ksx rd mM+hlk ls ØksekbV vksj dks yk;k x;k gSA m|ksx ifjlj esa jkW esVsfj;y ¼ØksesV vksj½ dh xzkbfMax yhfpax ,oa ,flfMQsds'ku dk dk;Z gksrk ik; x;k gSA ch0lh0,l0 mRiknu gsrq dksesV vksj o lksMk ,s'k dh eSU;qvy fefDlax rFkk jksfLVax dk dk;Z m|ksx dh lg bdkbZ es0 vkj0,0 dsfedYl ¼Xykscy dSfedYl b.MLVªht½ 23 [kkupUnziqj esa fd;k tkuk ik;k x;k gSA eS0 vkj0,0 dsfedYl ¼Xyksc dSfedYl b.MLVªht½ 23 [kkupUnziqj] jfua;k] dkuiqj nsgkr rFkk vesfygk VsDlVkbYl fy0 vkil esa lVk gqvk m|ksx gS rFk eS0 vkj0,0 dsfedYl] 23 [kkupUnziqj] ckjk jfua;k] dkuiqj nsgkr dks bl dk;kZy; ds i= la[;k 177@,u0vks0lh0&28@03 fnukad 08@01@03 }kjk lksfM;e lYQsV & 2-6 eh0Vu@fnu ds mRiknu gsrq vukifRr izek.k&i= tkjh fd;k x;k gSA m|ksx }kjk lgefr izkIr ugha dh x;h gSA mDr m|ksx esa nks la[;k esa jksfLVax QusZ'k rFkk ,d csch Cok;yj dk;Zjr ik;k x;k rFkk ftudk mi;ksx mijksDrkuqlkj csfld Økse lYQsV ds mRiknu gsrq fd;k tkrk ik;k x;k gSA ¼2½ [kkupUnziqj] jfua;k esa voS/k :i ls Hk.Mkfjr gStkMZ~l osLV dh fLFkr iwoZor ik;h xbZ gS rFkk blds lqjf{kr Hk.Mkj.k gsrq dksbZ Hkh iz;kl ugha fd;k tkuk ik;k x;k gSA izLrqr rF;ksa ds vk/kkj ij eS0 vkj0,0 dsfedYl ¼Xykscy dSfedYl½ 23 [kkupUnziqj] ckjka] jfua;k] rglhy& vdcjiqj] tuin dkuiqj nsgkr dks rRdky izHkko ls cUn djkus rFkk eS0 vesfygk VSDlVkbYl izk0fy0] [kkupUnziqj] jfua;k] rgly& vdcjiqj] tuin dkuiqj nsgkr dks tkjh cUnh vkns'k dk mYya?ku djus ds dkj.kksa ls m|ksx] ds fo:) fu;ekuqlkj n.MkRed dk;Zokgh fd;s tkus dh laLrqfr lfgr vk[;k vkids fopkjkFkZ ,oa vko';d dk;Zokgh gsrq lknj izLrqr gSA"
"The above industry was inspected by the undersigned on 09/06/06. At the time of inspection, Mr. K.C. Agarwal Director, M. Heilger Chem Pvt. Ltd., Mr. Sushil Chowdhary, Authorized Representative - G. Unium India Pvt. Ltd., Mr. Anil Khanna Director, M/s Khanna Vivek- Chemicals Pvt. Ltd., Mr. Sanjay Chhabda Director-Kalina Chemicals Pvt. Ltd. and Mr. Santosh Pandey - Director M/s Amelia Textiles Pvt. Ltd. were present at the time of inspection.
(1) The order of closer of the said industry, by Board Headquarter's letter number F 51342/C-2 /Haza./K-174/05 dated 06/10/05 is continued. In order to comply with the said order, the industry was sealed/closed on 10/11/05.
At the time of inspection, three trucks were found in the industry. The numbers of these trucks are UP 78 A.T 5418, O.R.-02 M 9923 and UP 78 - A.T. 7298 respectively has been noted. From these trucks, Chromite have been brought to industry from Odisha.
Grinding, leaching and acidification of raw material (chromite ore) in the industrial premises has been found to occur. Manual mixing of chromite ore and soda ash for BCS production has been found to be done and roasting work is being done by a subsidiary of the industry M/s RA Chemicals (Global Chemicals Industries), 23 in Khanchandrapur.
M/s R.A. Chemicals (Globe Chemicals Industries) 23 Khanchandrapur Rania, Kanpur Dehat and Ameliha Textiles Ltd. are adjacent industries and M/s. R.A. Chemicals, 23 Khanchandrapur, Bara Raniya Kanpur Dehat has been issued No Objection Certificate 48 for the production of Sodium Sulphate 2.6 MT/day vide this office's letter No. 177/NOC-28/03 dated 08/01/03. Consent has not been obtained by the industry. Two numbers of roasting firms and one baby boiler were found working in the said industry and those were found to be used for the production of Basic chrome Sulphate as mentioned above.
(2) Illegally manufactured hazardous waste has been found in Khanchandrapur Rania as before and no effort has been found to be made for its safe storage.
Based on the facts presented M/s R.A Chemicals (Global Chemicals) 23 Khanchandrapur, Baran. Tehsil - Akbarpur district, Kanpur Dehat to be closed from immediate effect and M/S Ameliha Textiles Pvt, Khanchandrapur, Tehsil - Akbarpur district, Kanpur Dehat should be penalized for non-compliance of the order thus the report along with the recommendation to be done is under consideration for your consideration and necessary action."
(English Translation by Tribunal)
44. Inspection report dated 15.06.2009 (p/435 of memo of appeal):
This report was submitted by Shri V.K. Mishra, Assistant Environment Engineer. The report says that for violations of environmental norms like dumping of chromium containing sludge illegally and its non-disposal properly, closure order was issued on 06.10.2005. However, unit did not follow closure order and broke open seals and commenced production, thereafter, UPPCB's headquarter passed another closure order on 18.12.2007 pursuant whereto unit was sealed on 30.01.2008. Process for imposition of environmental compensation was initiated against unit for illegal dumping of chromium waste under Rule 16(3) of HWMH Rules, 1989. Recommendation was made not to grant any CTO to the appellant.
Contents of the notice dated 15.06.2009 is reproduced as under:
"mijksDr lUnfHkZr m|ksx dk fujh{k.k vkids funsZ'kkuqlkj v/kksgLrk{kjh }kjk fnukad 15-06-2009 dks fd;k x;k fujh{k.k ds le; m|ksx izfrfuf/k ds :i esa Jh dhfrZeku flag jk;dokM+] funs'kd mifLFkr FksA fujh{k.k ds le; m|ksx dk lapkyu iw.kZr;k vo:) FkkA fujh{k.k vk[;k fuEu gSA 1- mDr m?kksx [kkupUniqj] iksLV vkWfQl&ckjk] jfu;k] rglhy& vdcjiqj] tuin&dkuiqj nsgkr esa LFkkfir ,oa iwoZ esa lapkfyr Fkk ftlesa ØkseksykbV] lYQ~;wfjd ,flM ,oa dksyrkj fip dk izeq[k dPps eky ds :Ik esa iz;ksx djrs gq, csfld Økse lYQsV dk izeq[k mRikn ds :Ik esa mRiknu iwoZ esa fd;k tkrk FkkA m?kksx ls mRiUUk ifjladVe; Bksl vif'k"V Øksfe;e ;qDr Lyt dk mi;qDr fuLrkj.k u fd;s tkus ,ao vfu;af=r :Ik ls m|ksx ds lehi fuLrkfjr fd;s tkus ds dkj.k Ik;kZoj.k laj{k.k vf/kfu;e 1986 dh /kkjk 5 ds vUrxZr 49 m|ksx dks cksMZ eq[;ky; ds i= la[;k ,Q 51342@lh&2@gStkMZl@ds&02@05 fnukWd 06&10&05 }kjk canh vkns'k fuxZr fd;k x;k FkkA 2- m?kksx }kjk mDr canh vkns'k dk vuqikyu u fd;s tkus rFkk iwoZ esa lhYM dh x;h mRiknu ls lacf/kr HkV~fB;ksa dh lhYM dks rksMdj iqu% mRiknu fd;s tkus ds dkj.k cksMZ eq[;ky; ds i= la[;k ,Q 25828@lh&2@lk0&323@2007 fnukWd 18&12&07 }kjk iqu% canh vkns'k fuxZr fd;k x;k] ftlds vuqikyu esa LFkkuh; iz'kklu ds lg;ksx ls bl dk;kZy; }kjk fnukWd 30&01&08 dks m|ksx esa iwoZ esa LFkfir mRiknu ls lEcf/kr HkV~fB;ksa dks iqUk% lhYM dj m|ksx dk lapkyu vo:) djk;k x;kA 3- cksMZ eq[;ky; ds i= la[;k ,Q 47150@lh&2@gStkMZl@440@09 fnukWd 01&04&09 }kjk tuin dkuiqj nsgkr esa jfu;k esa fLFkr ,oa iwoZ esa lapkfyr ch0lh0,l0 bdkbZ;ksa ds fo:) ifjladVe; vif'k"V fu;e 1989 ds lsD'ku 16¼3½ ds varxZr tqekZuk yxkus dh izfØ;k dk mYYks[k fd;k x;k FkkA 4- m|ksx }kjk izLrkfor dk;Z lksfM;e MkbØkseVs dk duoTkZu dj csfld Økse lYQsV dk mRIkknu dk;Z Hkh iwoZ esa m|ksx }kjk fd;s tk jgs mRiknu dk;Z ls lacf/kr gS ftlesa m|ksx esa iwoZ esa fLFkr lhYM HkV~fB;ksa dh lhy dks rksM+dj pksjh Nqis lapkfyr djus dh laHkkouk gSA vr,oa mijksDr dks n`f"Vxr j[krs gq, m|ksx ds iwoZ fLFkr m|ksx ifjlj esa uohu izLrkfor lksfM;e MkbØksesV dk duotZu dj csld Økse lYQsV dk mRiknu dk;Z ds fd;s tkus gsrq vukifRRk izek.k i= dk bl dk;kZy; }kjk fuxZeu vFkok lacaf/kr laLrqfr cksMZ eq[;ky; dks izsf"kr fd;k tkuk mfpr izrhr ugha gksrk gSA vk[;k vkids voyksdukFkZ ,oa vko';d dk;Zokgh gsrq lknj izLrqr gSA"
"As per your instructions, the inspection of above mentioned unit was done by the undersigned on 15-06-2009. Mr. Kirtiman Singh Rayakward, Director was present as the representative at the time of inspection. At the time of inspection, the industry was found not functuioning.The inspection report is as follows.
Above industry - Khanchandpur, Post Office- Bara Rania, Tehsil-Akabarpur, District-Kanpur Dehat was formerly established and functional, in which production of basic chrome sulphate using chromolite, sulphuric acid and coaltar as raw material was done from earlier. Due to non-suitable disposal of the hazardous waste chromium sludge and its disposal in the near surrounding, the closure order was issued to the industry under the Section 5 of Environment Protection Act, 1986 by the headquarter's letter number F 51342/C- 2/Hazardous/K-02/05 dated 06-10-05.
Due to non-compliance of the said closure order by the industry and due to breaking the seal of the furnaces and re-producing them, the closure order was re-issued to the industry by the headquarter's letter number F 25828/C-2/SA. 323/2007 dated 18-12-07, which with the help of the local administration, on 30-01-08, blocked the operation of the industry by re-sealing the furnaces.
Vide board headquarter's letter no. F 47150/C- 2/Hazardous/440/09 dated 01-04-09, imposition of penalty under Section 16(3) of the Hazardous Waste Managment Rules, 1989 on already operating B.C.S units was mentioned located in Janpad Kanpur Dehat Rania.
The work proposed by industry, the production of basic chrome sulphate by conversion of sodium dichromate, is also related to the production work being done by the former industry, in which there is a possibility of operating secretly by breaking the seal of the industry.50
No objection for the production work of newly proposed basic chrome sulphate by conversion of sodium dichromate sodium in the industrial complex of the abovementioned industry seems not appropriate."
(English Translation by Tribunal)
45. Inspection dated 15.06.2010 made by Shri P.K. Mishra, Assistant Environment Engineer and Shri Prakhar Kumar, Junior Engineer. The said report is also in the same terms as the report dated 15.06.2009.
46. Letter dated 15.06.2010 (p/434 of memo of appeal): This letter was sent by RO UPPCB to Chief Environment Officer (Circle-2), UPPCB, Lucknow stating that the unit was closed by order dated 06.10.2005. However, the unit broke seals and started production whereupon another closure order was issued on 18.12.2007 and unit was actually sealed on 30.01.2008. For illegal dumping of chromium waste, action was initiated under Rule 16(3) of HWMH Rules, 1989. Further application of appellant for grant of CTO was rejected by order dated 18.06.2009. Inspection reports dated 15.06.2009 and 15.06.2010 were forwarded for further action. Contents of letter dated 15.06.2010 read as under:
"d`i;k mijksDr fo"k;d dk lanHkZ xzg.k djus dk d"V djsaA ¼lqyHk laUnHkZ gsrq Nk;kizfr layXu gS½ mDr ds lanHkZ esa voxr djkuk gS fd m|ksx ftlds lapkyu ls mRiUu ifjladVe; vif'k"V ¼Økse ;qDr Lyt½ mDr dk mi;qDr mipkj ,oa fuLrkj.k u fd;s tkus ds dkj.k i;kZoj.k laj{k.k vf/kfu;e 1986 dh /kkjk 5 ds varxZr m|ksx dks cksMZ eq[;ky; ds i= la[;k ,Q 51342@lh&2@gStkMZl@ds&02@05 fnukad 06&10&05 }kjk canh vkns'k fuxZr fd;k x;k FkkA ftlds vuqikyu esa m|ksx ds mRiknu ls lacaf/kr m|ksx esa LFkkfir HkV~fB;ksa dks lhYM dj mRiknu dk;Z cksMZ }kjk vo:) djk;k x;k FkkA ijUrq m|ksx }kjk mDr dk vuqikyu u dj mijksDr of.kZr mRiknu ls lacaf/kr HkV~fB;ksa dh lhy dks rksM+dj iqu% mRiknu dk;Z izkjEHk fd;s tkus ds dkj.k cksMZ eq[;ky; ds i= la[;k ,Q 25828@lh&2 @lk0&323@2007 fnukad 18- 12-2007 }kjk iqu% cUnh vkns'k fuxZr fd;k x;k Fkk] ftlds vuqikyu esa LFkkuh; iz'kklu ds lg;ksx ls bl dk;kZy; }kjk fnukad 30-01-2008 dks m|ksx esa iwoZ esa LFkkfir mRiknu ls lacaf/kr HkV~fB;ksa dks iqu% lhYM dj m|ksx dk lapkyu vo:) djk;k x;kA tuin dkuiqj nsgkr esa jfu;k esa fLFkr ,oa iwoZ esa lapkfyr ch0lh0,l0 bdkbZ;ksa ds fo:) ifjladVe; vif'k"V fu;e 1989 ds lsD'ku 16¼3½ ds varxZr tqekZuk yxkus dh izfØ;k dk mYys[k fd;k x;k FkkA lqyHk lanHkZ gsrq lanfHkZr i= dh Nk;kizfr ¼layXud&1½ m|ksx dk izLrkfor mRiknu dk;Z ¼lksfM;e MkbZØksesV ls csfld Økse lYQsV dk mRiknu½ m|ksx }kjk iwoZ esa fd;s tk jgs mRiknu dk;Z ls lEcfU/kr gS ftlesa m|ksx esa iwoZ esa LFkkfir lhYM HkV~fB;ksa ds lapkfyr fd;s tkus dh lEHkkouk FkhA vr% mDr izd`fr ds izLrkfor m|ksx dh LFkkiuk iwoZ fLFkr m|ksx ifjlj esa fd;s tkus gsrq vukifRr izek.k i= vkosnu i= bl dk;kZy; ds i= la[;k 2467@,u0vks0lh0@,&5@09 fnukad 18-06-2009 }kjk vLohd`r fd;k x;k FkkA lqyHk lUnHkZ gsrq Nk;kizfr layXu gSA 51 ¼layXu&2½ m|ksx dh iwoZ fujh{k.k vk[;k fnukad 15-06-2009 ,oa v|ru fujh{k.k vk[;k fnukad 15-06-2010 dh izfr;k¡ lqyHk lanHkZ gsrq layXu gSA ¼layXud&3 ,oa 4½ सूचनाथ ,oa vko';d dk;Zogh gsrq lknj izsf"krA"
"Please take reference of the above topic. (Photocopy is attached for reference). In the context of the above, it is to be informed that due to non-proper treatment and disposal of the hazardous waste generated from the operation of the industry, under Section 5 of the Environment Protection Act 1986, closure order has been issued to the industry vide Board Headquarter's letter number F 51342/C- 2/Hazardous/k-02/05 dated 06-10-05. In compliance of which the furnaces installed in the industry were sealed and work was stopped by Board. But due to non-compliance of the above by the industry, and starting the production again by breaking the seal of the furnaces, vide board headquarter's letter 25828/C-2/S-323/2007 dated 18.12.07, again closure orders have been passed in compliance of which, with the help of the local administration, on 30-01-08, blocked the operation of the industry by re-sealing the furnaces. Imposition of penalty against the BCS units operated since earlier located in Janpad Kanpur Dehat Rania under Section 16(3) of Hazardous Waste Managment Rules, 1986. A photocopy of the referred letter is attached for easy reference (Annexure-1). The proposed production work of the industry (production of basic chrome sulphate from sodium dichromate) is related to the production work being done by the industry in the past, in which there was a possibility of operating the sealed furnaces installed by the industry earlier.
Therefore, No Objection Certificate application for setting up the proposed industry of the said nature in the industrial complex was rejected vide this office's letter No. 2467/N.O.C./A-5/09 dated 18-06-
09. A photocopy is attached for easy reference. (Annexure-2) Copies of previous inspection report dated 15-06-09 and updated inspection report dated 15-06-10 of the industry are attached for easy reference. (Enclosure 3 & 4) Regards sent for information and necessary action."
(English Translation by Tribunal)
47. Inspection dated 03.10.2011 (p/432 of memo of appeal): This notice was sent by Member Secretary, UPPCB under Section 5 of EP Act, 1986 read with HWMH Rules, 1989 and Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (hereinafter referred to as 'HWMHTM Rules, 2008'). The notice says that the unit was inspected on 16.09.2011 when it was found closed for several years and machines were not functioning. Hazardous waste was illegally disposed/dumped by the unit in violation of HWMHTM Rules, 2008 and 52 HWMH Rules, 1989 and for scientific disposal thereof, no action was taken by the unit. As a result whereof, ground water has got contaminated and, therefore, action was proposed against the appellant under Section 5 of EP Act, 1986, by assessing environmental compensation. The contents of the notice are reproduced as under:
"mijksDr fo"k; ds lanHkZ esa tSlk fd vki Lo;a HkyhHkk¡fr fHkK gSa fd vkids m|ksx eS0 vehfy;k VSDlVkbYl ,.M dsfedy ¼izk0fy0½] meju] jfu;ka] tuin jekckbZuxj }kjk tfur csfld Økse lYQsV gStkMZl osLV vkjkth la0 1418@3] [kkupUnziqj] jfu;k] jekckbZuxj esa voS/k :i ls Mkyk x;k gS] ftlds dkj.k mijksDr LFky ij Hkw&xHkZ ty iznw"k.k dh fLFkfr mRiUu gks jgh gSA bl laca/k esa iwoZ esa vkids mDr m|ksx ds fo:) i;kZoj.k ¼laj{k.k½ vf/kfu;e] 1986 dh /kkjk 5 ds varxZr cUnh dh dk;Zokgh Hkh dh x;h FkhA ;r% vkids mDr m|ksx dk cksMZ ds vf/kdkfj;ksa }kjk fd;s x;s v|ru fujh{k.k fnukad 16-09-2011 ds nkSjku ;g ik;k x;k fd m|ksx foxr dbZ o"kkZsa ls cUn gS rFkk la;a= Hkh fØ;k'khy ugha gSA ;r% vkids mDr m|ksx }kjk lapkyujr~@mRiknujr~ jgus ds le; voS/k :i ls fuLrkfjr fd;s x;s gStkMZl osLV dk ifjladVe; vif'k"V ¼izcU/ku rFkk gFkkyu½ fu;e] 1989 lgifBr ifjladVe; vif'k"V ¼izca/ku] gFkkyu ,oa lhekikj lapyu½ fu;e] 2008 ds vuqikyu Øe esa Vh0,l0Mh0,Q0 ds ek/;e ls leqfpr fuLrkj.k fd;k tkuk vko';d gSA ;r% vkids }kjk mijksDr dk;Zokgh gStkMZl osLV fuLrkj.k ds laca/k esa vHkh rd u gh dksbZ dk;Zokgh dh x;h ,oa u gh dksbZ izLrko izLrqr fd;k x;k gS A ;r% vkids mijksdr d`R; ls vkjkth la0 1418@3 xzke&[kkupUnziqj tuin jekckbZuxj o blds vkl&ikl ds {ks=ksa esa Hkw&xHkhZ; ty iznw"k.k dh xaHkhj leL;k O;kIr gks x;h gS ftldk vkdyu Hkh vki }kjk vHkh rd ugha djk;k x;k gSA यतः पयावरण (संर ण) अिधिनयम, 1986 की धारा-5 के अ गत आपको िनदिशत िकया जाता है िक आराजी सं0 1418/3 ाम खानच पुर जनपद रमाबाईनगर पर आपके उ ोग से जिनत है जाडस वे त ाल उठवाकर सुरि त िन ारण िकया जाय अथवा रा बोड ारा उ gStkMZl osLV को उठवाने एवं िन ारण कराये जाने की दशा म उस पर आने वाले य को आप ारा वहन िकया जाय ।
पयावरण (संर ण)) अिधिनमय, 1986 की धारा-5 के अंतगत िन ािवधान ह:-
"Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct:-
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service."
अतः उपरो संबंध म कृपया आप िदनां क 10.10.2011 तक कृत कायवाही से बोड को अवगत कराया जाना सुिनि त कर अ था की थित म पयावरण (संर ण) अिधिनयम, 1986 के ािवधानों के अ गत आपके उ ोग से जिनत िकये गये उ प रसंकटमय अपिश के उठाने/िन ारण म होने वाली य 53 धनरािश की वसूली भू-राज की भाँ ित वैधािनक कायवाही करते ये िजसम आपके उ ोग की भूिम को अिध हीत िकया जाना आिद भी स िलत है , की जा सकती है िजसका स ूण उ रदािय यं आपका एवं उ ोग के संचालन के ित उ रदायी सम यों का व आपके उ ोग मै० अमीिलया टै टाइ ए केिमकल ( ा० िल०). उमरन रिनया जनपद रमाबाईनग का होगा।"
English Translation by Tribunal-
"With reference to the above subject, as you yourself are well aware that Basic Chrome Sulphate hazardous waste generated by your industry M/s Amelia Textiles & Chemical (Pvt. Ltd.) Umran, Rania, District Ramabainagar has been dumped at Arazi No. 1418/3, Khanchandpur, Rania Ramabainagar, due to which the situation of ground water pollution is arising at the above site. In this regard, closure action was also issued against your above industry under Section 5 of the Environment (Protection) Act, 1986.
Whereas, during the latest inspection of your said industry by the officers of the Board on 16.09.2011, it was found that the industry is closed since last several years and the plant is also not functional.
Whereas proper disposal is necessary through T.S.D.F of illegally disposed Hazardous waste by your above industry during the period of operation/production, in compliance with Hazardous Waste (Management and Handling) Rules, 1989 read with the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008.
Whereas, neither action has been taken by you nor any proposal has been submitted in relation to the above-mentioned action for disposal of hazardous waste.
Whereas, from your above action, there has been arisen serious problem of ground water pollution in Arazi No. 1418/3 village Khanchandpur District Ramabainagar and its surrounding areas, which has not been assessed by you so far.
Whereas, under Section 5 of the Environment (Protection) Act, 1986, you are directed that, at application No. 1418/3 village, Khanchandpur district, Ramabainagar the hazardous waste generated from your industry at should be immediately picked up and disposed of safely and in the condition the above-mentioned hazardous waste of disposed of by the State Board, the expenses on it should be borne by you.
Under Section-5 of the Environment (Protection) Act, 1986, there is the following provision:-
"Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct:-
(a) the closure, prohibition or regulation of any industry, operation or process; or 54
(b) stoppage or regulation of the supply of electricity or water or any other service."
Therefore, please make sure to inform the board about the action taken by 10.10.2011 in the above relation, otherwise, under the provisions of the Environment (Protection) Act, 1986, in the lifting/disposal of the said hazardous waste generated from your industry otherwise, the recovery of the expenditure amount can be done by taking legal action like land revenue, which includes acquisition of the land of your industry, etc., whose entire responsibility will be yours and all the persons responsible for the operation of the industry M/s Amelia Textiles & Chemical (Pvt. Ltd.). Umran of Rania district, Rambainagar."
Objections of appellant filed on 18.08.2022 to the report dated 28.07.2022:
48. Since these objections have been pressed and argued before Tribunal, we find it appropriate to reproduce the same as under:
"2. It is relevant to note that even before preparation/filing of the Report dt.28.07.2022, the UPPCB had issued a Demand Notice dt.14.04.2022, assessing Appellant's liability as Rs. 14,61,66,557 on the basis of a deemed contribution of chromium waste of 3248.146 MT. Appellant has already filed IA No.127/2022 on 23.05.2022 in the captioned appeal before this Hon'ble Tribunal, challenging the said notice.
3. The Report dt.28.07.2022 filed by the UPPCB appears to be by way of afterthought considering that UPPCB had already issued Demand Notice dt.14.04.2022 without any scientific basis and in blatant violation of this Hon'ble Tribunal's Order dt.12.11.2021. The Report dt.28.07.2022 deserves to be rejected on this preliminary ground. Without prejudice, and for the sake of completeness, the Appellant has however furnished the present objections, dealing with the merits of the Report dt.28.07.2022.
4. The UPPCB's Report dated 28.07.2022 contains the following findings:
A. Assessment of contribution of chromium waste is based on the "production capacity of the industry".
B.Pursuant to this Hon'ble Tribunal's Order dt.12.11.2021, the replies of four of the noticees, i.e., Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt Ltd., Rahman Industries Ltd., were found satisfactory and accordingly, the proceedings against these units were revoked.
C.None of the appellants before the Hon'ble NGT have furnished record of Form-1 and Form 13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises.
55 D.Therefore, the concerned industries were responsible for the dumping of hazardous waste and their liability is to be apportioned as per production and operation period.
5. On this basis, the UPPCB has entered the following conclusion against the Appellant herein:
Name & address of M/s Waris Chemicals Pvt. Ltd.
industry: Khanchandrapur, Rania, Kanpur
Dehat
Production capacity 3
(MTD):
Operational Period: 2001 to Oct 2005 NOC 11.09.2001
(40 months)
Assessed quantity of About 4.682 percent of total waste on dumped Chromium the basis of production capacity waste as per percentage (Chromium Waste 2898.809 M.T.) of production (MT):
Revised Assessed 2898.809+{4.682*4652/(28.092+8.7 quantity of dumped 79+4.682+15.021+5.774)}=3248.146 Chromium waste after assessment of stored quantity in the premises (M.T.):
Revised Environmental Rs.14,61,66,557/-
Compensation
6. The aforesaid findings and conclusions contained in UPPCB's Report dt.28.07.2022, are whimsical, capricious, and arbitrary. In the succeeding paragraphs, Appellant sets out its objections to the report. A. Whimsical fluctuating assessments
7. As per the Order dt.28.05.2020 (originally impugned in appeal), the UPPCB declared that that the Appellant was responsible for dumping 8885.73 MT and assessed liability thereon as Rs.39,98,57,850. The said assessment was stayed by this Hon'ble Tribunal on 04.01.2021 and the UPPCB thereafter gave Report dt.30.09.2021 stating that the Appellant had dumped 2545.921 MT of chromium waste and must pay Rs.11,45,66,431. Even this assessment was found faulty, as evident from this Hon'ble Tribunal's Order dt.12.11.2021. Now, in the third instance, the UPPCB's Report dt.28.07.2022 has come out with the story that the Appellant is responsible for dumping 3248.146 MT of chromium waste and liable to pay Rs.14,61,66,557. For ease of reference, the figures are tabulated below:
Order Report Report dt.28.05.2020 dt.30.09.2021 dt.28.07.2022 8885.73 MT 2545.921MT 3248.146MT Rs.39,98,57,850 Rs.11,45,66,431 Rs.14,61,66,557
8. In all three instances, there is no scientific or rational basis for calculation. The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble Tribunal in various judicial orders). Yet, the dump of 62225 metric ton has been sought to be divided only 56 among a few units, including Appellant that operated only between 2001-2005 on the basis of "production capacity".
9. It is relevant that the Order dated 15.11.2019 as passed in OA Nos.985-986/2019 speaks of chromium dumps and water pollution at two sites: (i) Rania, Village Khan Chandpur, District Kanpur Dehat
(ii) Rakhi Mandi, Kanpur Nagar, which have been in existence since 1976. The said order records that the CPCB had filed a report on 30.10.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi require remediation of groundwater. The damages of Rs.280 crores (approx.) was apparently assessed as estimated cost for remediation of both areas. However, UPPCB has apportioned the waste and assessment for liability only among the units in Kanpur Dehat in each instance.
10. UPPCB has failed to comply with the Order dt.12.11.2021 of this Hon'ble Tribunal. No scientific reasons have been furnished for the determination of quantum of waste and consequent liability. The Report dt.28.07.2022 has made an estimate on the basis of "production capacity", which methodology has not been approved hitherto. The same methodology was hitherto followed by the UPPCB in its Notice dt.28.05.2020, Reply to Appeal dt. NIL November 2020, Report dt.30.09.2021 filed in the captioned appeal. However, the said methodology was not approved by this Hon'ble Tribunal, as would be apparent from the Orders dt.10.07.2020, 04.01.2021 and 12.11.2021.
B. Unexplained escalation in quantity
11. The total quantity of waste as assessed in the UPPCB Impugned Order dated 28.05.2020, Report dated 30.09.2021 a Report dt.28.07.2022 is 62225 MT. On the contrary, in 2009, as per the intimation of UPPCB itself, the total waste was assessed as 45000 MT. True and Typed Copy of the UPPCB Letter dated 01.04.2009 is annexed herewith as Annexure 'A'. Appellant had objected to the said communication categorically raising the plea that the dump was pre- existing Appellant's operations. True Copy of the Letter dt.10.07.2009 is annexed herewith as Annexure 'B'. The matter was not further actioned. It appears that between 2009 and 2019, the 45000 MT has gone up to 62225 MT as per UPPCB's own inspection. Indisputably, Appellant had shut down in 2005. Therefore, assuming but not conceding Appellant bore any responsibility, it could not be responsible for the escalation in quantity.
12. UPPCB has not disclosed the waste quantity as it stood in 2005. It appears that UPPCB has permitted other establishments/operators to continue with dumping activity beyond 2009 but affixed responsibility thereto to the appellants in the present batch of cases. Arbitrary exclusions of favoured units
13. There were various other entities operating chromium-based units in the concerned area but the UPPCB has found some or the other reason to exempt or absolve such units of liability and conveniently accepted whatever explanation has been provided by other units which were issued show cause notices.
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14. In the Report dt.28.07.2022, the UPPCB has given a clean chit to Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt Ltd., Rahman Industries Ltd., accepting the explanation was furnished by them. However, none of the objections nor explanations of the appellants before this Hon'ble Tribunal have found favour with the UPPCB. The UPPCB's slanted and biased approach speaks for itself. The estimated figures (of waste and liability) are for mere convenience of the UPPCB whose only objective appears to be that the total Environmental Compensation of Rs.280.01 Crores has to be divided up among some pre-determined target units (i.e., the Appellants before this Hon'ble Tribunal).
C. Failure to consider relevant facts pertaining to production
15. The Appellant had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped. The details of consumption were provided along with the Objections dt.08.11.2021 served on UPPCB and filed before this Hon'ble Tribunal in this captioned appeal. The details were as follows:
a) Total chromite ore utilised between 2001-2005: 3833.475 MT
b) Total waste generated between 2001-2005: 479.180 MT (stored premises).
True Copy of the Table of Production Details and Year-wise Purchase Chart of Chromite Ore of Amelia Textiles is annexed herewith as Annexure 'C'.
16. It is relevant that this Hon'ble Tribunal had itself taken cognizance of the objections filed, in the Order dt.12.11.2021. However, the Objections dt.08.11.2021 filed before this Hon'ble Tribunal have not been noticed, let alone considered by the UPPCB. Once again, this approach points to the biased and pre-determined mindset of the UPPCB.
D. Irrelevant documents furnished as "basis"
None of the documents filed with the Report dt.28.07.2022 indicate the quantum of waste alleged to be dumped by the Appellant to be anywhere close to 3248.146 MT. The barely legible documents filed (in Hindi) by UPPCB appear to pertain to a period prior to closure of Appellant's unit in 2005. As such, these documents nowhere support the UPPCB's conclusion as to responsibility of the Appellant in dumping to the extent of 3248.146 MT.
17. The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have thus not been furnished. The documents furnished bear little or no nexus to the exercise required to be carried out pursuant to this Hon'ble Tribunal's Order dt.12.11.2021.
E. Permission for storage/transport of waste
21. It is relevant that Appellant had also applied for disposal of the waste likely to be generated, in terms of the Hazardous Waste (Management & Handling) Rules, 1989. True/Typed Copy of the Appellant's Application dt.11.09.2001 is annexed herewith as 58 Annexure D. During pendency of such application, in accordance with the NOC dt.11.09.2001 issued by UPPCB, the Appellant stored the chromium waste generated in lined tanks within the factory premises. However, Appellant's application under Hazardous Waste (Management & Handling) Rules, 1989 remained unprocessed and the Appellant was not given permission to remove the chromium waste generated at its unit. The waste was however not dumped outside the premises. Appellant complied with the conditions contained in the NOC dt.11.09.2001 which had specified that production has to cease if the storage capacity within the factory premises is exhausted.
F. Improper legal basis for calculation of damages
18. The Report dated 28.07.2022 has relied upon a formula prepared by the CPCP under the Hazardous and other Waste (Management and Transboundary Movement) Rules, 2016 being, "Environmental Compensation (EC) = Q X ERF X R where 'Q' is observed quantity of waste; ERF is environmental risk factor and R is environmental compensation factor @ Rs.30000."
19. This formula, as issued under the 2016 Rules, cannot retrospectively apply qua an alleged violation ending in 2005. Reliance is placed on Rule 1(2) of the 2016 which states that the Rules come into force on the date of their publication in the gazette (which is 04.04.2016). The 2016 Rules or guidelines issued thereunder, being subordinate legislation/executive instructions cannot carry retrospective effect for calculation of damages in respect of alleged dumping upto 2005. Of particular relevance is the 'R' factor taken @ Rs.30000, which benchmark of 2016 would have likely been different if the formulation was to apply for 2005.
20. Assuming but not conceding that the 2016 formula can be applied, the 'Q' factor (quantity of waste) has been incorrectly assessed, as a matter of fact, for the reasons already mentioned above. Going by UPPCB's own Letter of 01.04.2009, the maximum applicable penalty was only Rs.1.125 crores on the basis total quantity being 45000 MT and the disposal charge being Rs.1500 per tonne.
G. Laches
21. The entire exercise is highly belated and hit by laches. The Appellant is non-functional for a very long time and neither the resources nor materials to defend itself. The very process of requiring the Appellant to defend itself against alleged acts/omissions which relate back to two decades is untenable, hit by delay and laches.
22. The exercise undertaken by the UPPCB was quasi-judicial in nature. It has resulted in a serious civil liability. Even if there is no express provision of limitation for initiation of proceedings of compensation for environmental damage, the proceedings cannot be launched after 15 years of closure of the unit and in respect of dumps in existence since 1976 (well before the incorporation/existence of Appellant). Such proceedings, being quasi-judicial in nature, ought to have been initiated within a reasonable time as held by the Hon'ble Supreme Court in the following cases:
59
(a) Shalimar Works Ltd. v. Workmen, AIR 1959 SC 1217, which holds that though the Industrial Disputes Act, 1947, does not prescribe limitation for reference of disputes, nonetheless disputes ought to be referred to the tribunal within a reasonable time-frame. Such interpretation was given thought Section 10 of the Industrial Disputes Act in fact permits reference of industrial dispute "at any time". This position reiterated in Prabhakar v. Sericulture Department, (2015) 15 SCC 1.
(b) Chhedi Lal Yadav v. Hari Kishore Yadav, (2018) 12 SCC 527. A prayer for repossession of land was filed by farmers after a lapse of 24 years in terms of Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951. It was contended that the statute a welfare legislation and ought to be read so as to benefit the Raiyat farmers, in matters of delay. It was contended that there was no provision of limitation regarding suo moto exercise of power by the authority for restoration of land. The Supreme Court rejected the contention on the ground that even if there is no limitation against suo moto exercise of power, there cannot be any exercise of power after a long lapse of time. Similar position has been enunciated in Collector v. D. Narsing Rao, (2015 3 SCC 695.
23. Though the Interim Order dated 04.01.2021 of this Hon'ble Tribunal has expressed a prima facie view against the plea of limitation (on the ground that there is absolute liability under the "polluter pays" principle), it is respectfully submitted that even the doctrine of "absolute liability" premised on the "polluter pays"
principle does not enable the Pollution Control Board to initiate proceedings for imposition of penalty beyond a reasonable time- frame.
24. For example, Section 15(3) of the NGT Act permits the apex authority in the field of environmental law enforcement - i.e., this Hon'ble Tribunal, to entertain applications for compensation within 5 years of the date of cause of action, as first accrued. This shows that there is no legislative intent to permit an open-ended and indefinite period for assessment/demand of compensation on the doctrine of absolute liability. When such is the case for the apex body, it ought not to be implied that the State Pollution Control Board enjoys unlimited power to impose and assess damages for any length of time.
25. In the interim order dated 04.01.2021, the Hon'ble Tribunal relied on the judgement in Hindustan Times v. UOI, (1998) 2 SCC 242 to observe that limitation is not applicable to the case. However, the aforementioned precedent also takes note of the principle that the defence of delay can be availed where prejudice is pleaded and proved.
26. In the present case, prejudice has been consistently pleaded both before the authority (UPPCB) and this Hon'ble Tribunal. The Appellant's unit was shut in 2005. There was no production for 15+ years. The impugned proceedings of the UPPCB seeks to penalise Appellant for alleged dumping of waste from 1976 for which the UPPCB is not able to produce any record other than rely on hypothetical "production capacity". Petitioner was not even in existence from 1976.
60
27. The dumps in question admittedly existed since 1976 while the Appellant operated only between 2001-2005. UPPCB has failed to disclose as to the quantity and extent of the dumps as they existed, prior to the operation of the Appellant. As the matter is very stale and production has long ceased, Appellant has found it extremely difficult to make its defence on facts. Appellant has been unable to marshall contemporaneous evidence of wrongdoing of other persons/third parties who may have been the actually entities responsible for the dumping in the areas concerned. Such prejudice is irreversible.
28. Appellant ought not to be visited with adverse civil consequences in respect of the land/unit in 2022 in respect of alleged dumping between 2001-2005. Appellant relies on the principle enunciated in State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570.
29. Furthermore, if any reliance is to be placed on the documents furnished with Report dt.28.07.2022, UPPCB was fully aware more than 15 years ago, of the alleged dumping, if any. It was thus capable of taking appropriate measures against the erring units at the relevant time that the alleged dumping was detected. It is unlawful and belated for UPPCB to levy environmental compensation 15 years after discovery of alleged violation.
30. Appellant reiterates all other grounds and submissions hitherto made in the appeal, Objections dt.08.11.2021 filed before this Hon'ble Tribunal to UPPCB Report dt.30.09.2021 and IA No.127/2022 filed in the captioned appeal respect of UPPCB's Demand Notice dt.14.04.2022.
31. Appellant respectfully submits that the Appeal may accordingly be allowed and the Impugned Order dt.28.05.2020, Report dated 30.09.2021, Order dt.14.04.2022 and Report dt.28.07.2022 set aside, insofar as the Appellant is concerned."
Documents appended with objections dated 18.08.2022:
49. Letter dated 01.04.2009 (p/368 of memo of appeal): The above objection submitted by appellant is appended with a letter dated 01.04.2009 sent by Member Secretary, UPPCB to Member Secretary, CPCB stating that six industries including appellant were operating at Kanpur Dehat for last 15 years; dumped their hazardous waste containing Chromium in open ground; size approximately 200 × 100 meter; closure orders were issued to these industries under HWMH Rules, 1989; the units have neither agreed to dispose hazardous waste nor ready to share the expenditure; total hazardous waste as per IITR study report was around 45,000 tones and taking transportation, stabilization and disposal charges 61 in secured land, the total expenditure is worked out to Rs. 6.75 Crores;
therefore, a fine of Rs. 1.125 Crores be imposed upon each of the 6 units. The said recommendation was made with request to grant approval under Rule 16(3) of HWMH Rules, 1989.
50. Reply dated 10.07.2019 (p/372): The said notice was opposed and protested by five units collectively i.e., M/s. Cerulean Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd. and M/s. Amelia Textiles & Chemicals Pvt. Ltd. vide their objections dated 10.07.2019 wherein they said as under:
"1. That before writing to you for imposing fine on 6 units of Rania Kanpur Dehat. UPPCB did not give any opportunity to clarify our positions. The quantity and total fined amount stipulated in that letter are fictitious and malafide.
2. That the fine stipulated unit wise is incorrect in total as the said companies ran their units for different span of time. Further the capacity installed & utilized of each plant is different so the quantity of waste generation of individual unit will not be the same.
3. That at the said solid waste dump, the lot of waste was lying there before operation of these 6 units. The many BCS units were in operation before/during the operation of our units in Kanpur Nagar, Kanpur Dehat, Unnao & Fatehpur. That some waste dumped there maybe of units other that BCS factories.
4. That UPPCB was allotted 10.5 Hectares of land by Government free of cost in year 1994 at village Kumbhi, Kanpur Dehat for developing common secured land fill (CSLF) facility. It was the primary responsibility of UPPCB to arrange for CSLF at least for small scale industries like us in UP, but they did not nothing until 2003.
5. That after 10 years in the year 2003 3 Hectares land was leased to KANPUR PRADOOSHAN NIYANTRAN SAMTI (KPNS) to develop and construct CSLF facility. We are also member of KPNS and contributed a lot towards the construction of CSLF facility. KPNS completed the CSLF in the month of Oct 2005, which was intimated to UPPCB vide their letter dated 30/09/2005 (copy attached) The construction of CSLF was carried out as per technical specification of National Productivity Council, guide lines of local administration and UPPCB. The Chairman of UPPCB also visited the site in May 2005 and appreciated the quality of work being done by KPNS.
That the KPNS also applied for authorization of the operation of the CSLF facility vide their letter dt 07/03/2005 (copy of application attached).62
That the UPPCB had neither responded to the request of KPNS for operation of CSLF facility nor intimated to them in regard to deficiency, if any in the work done by them.
6. That without pointing out any shortcoming in the construction work of CSLF the factories were closed/sealed in 2005, causing us severe financial crisis and unemployment to the workers.
7. That the lease of land to KPNS was terminated by UPPCB unilaterally on 4/10/2006 without giving any opportunity.
8. That if the CSLF was not up to the mark why the said CSLF was given to Bharat Oil & Waste Management Ltd. (BOWML) free, of cost, who have no experience of such type of activities. The KPNS has not been compensated for handling over the CSLF facility to BOWML. The present cost of CSLF will be about Rs. 2 Crores.
9. That the authorization for disposal of solid waste in CSLF constructed by KPNS was not given, whereas authorization for the same CSI F has been granted to BOWML.
10. That this discriminatory action of the UPPCB heavily damaged the environment, industrial production & social cause.
11. That our units are SSI Sick Units and are unable to bear any fine. Moreover, the financial position worsened due to long closure of the units.
12. That howsoever, if the said CSLF Facility is handed over to KPNS we will clear the said site (dump). If CSLF is not handed over to KPNS then Bharat Oil & Waste Management Ltd. should clear the site (dump) on their cost.
13. That before taking any action against us, we may please be given a chance of personal hearing also."
51. Production chart (annexure-C at p/376): Appellant has filed annexure-C to the objections giving details of production of Chromium products, consumption of Chromite ore and generation of Chromium waste from 2001-2002 to 2005-2006 as under:
"production of Chromium products, consumption of Chromite ore and generation of Chromium waste from 2001-2002 to 2005-2006 Figures in M.T. Sr. Year Basic Sodium Sodium Sodium Total Chromite Chromium No Chrome Dichromate Chromate Sulphate Ore Waste . Sulphate Consumed Generation 1 2001 408.400 57.000 17.500 151.600 634.500 692.505 02 2 2002 852.850 5.500 316.468 1,174.818 1067.870 03 3 2003 901.650 3.750 418.823 1,324.223 945.460 04 4 2004 459.750 93.220 562.970 684.740 05 63 5 2005 479.500 112.860 592.360 442.900 06 3112.150 66.250 17.500 1,092.971 4,288.871 3533.475 479.180
52. Copy of the application filed for authorisation under HWMH Rules, 1989 (annexure-D at p/377): Appellant has said that he applied for autorisation under Rule 5 of HWMH Rules, 1989 by submitting its application dated 11.09.2001, copy whereof has been filed as annexure-D to the objection dated 18.08.2022. The contents of the said application show that capital investment was Rs. 46 lakhs and production commenced in September 2001. Details of the products and bye-products to be manufactured and raw material to be used are given as under:
"(a) (1) List and quantum of Basic Chrome Sulphate 3.00 MT/day products or Sodium Dichromate 1.37 MT/day or Sodium Chromate 2.00 MT/day or Chromic Acid 0.750 MT/day
(a) (2) List and quantum of Sodium Sulphate 1.00 MT/day bye-products
(b) List and quantum of raw Chromite ore 3.5 MT/day materials Soda Ash/Caustic 1.5 MT/day Sulphuric acid 1.2-1.5 MT/day Molasses 0.2 MT/day Lime 0.8 MT/day"
53. With regard to generation of solid waste and hazardous waste, appellant has given details as under:
"Solid wastes
(a) Total Quantum of Solid Wastes 0.5 MT/day generation including all types Hazardous Wastes 0.5 MT/day
(b) Quantum of different types of hazardous waste generated, its classification in terms of schedule 1,2,3 of the amended Hazardous waste Rule dated 6th January, 2000 and defined under the Environment (Protection) Act, 1986 Quantity Source of waste Category as per Ton/year schedule 1,2,&3 64
54. For storage and disposal of waste, appellant has mentioned as under:
"(c) Mode of storage within plant and method of disposal for all of above wastes Temporarily stores in pits of size 42′ × 50′ × 15′ depth & 40′ × 30′ × 10′ depth"
ARGUMENTS:
55. Learned Counsel for appellant contended that the unit was closed long back, i.e., since 2005 and after almost 14 years, imposition of liability on the alleged dumping of Chromium waste and assessment of environmental compensation is wholly illegal and barred by limitation. Further, the computation of compensation is arbitrary, imaginary, based on presumption, deemed attribution and is not substantiated by any material.
56. It is vehemently argued that RO UPPCB has computed compensation on the basis of proportional quantity of waste lying at the questioned site since 1976, ignoring the fact that appellant unit commenced its production only in 2001 and stopped functioning in 2005. Therefore, the apportionment/proportional liability passing upon appellant is patently illegal. Compensation has also been determined on the basis of formula prescribed in Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 Rules, 2016 (hereinafter referred to as 'HOWMTM Rules, 2016') though the aforesaid Rules having been published in Gazette of India, Extraordinary, dated 04.04.2016 and enforced from the date of publication in official Gazette, would not apply to something which transpired between 2001 to 2005. In other words, HOWMTM Rules, 2016 could not have been applied retrospectively in order to determine environmental compensation, liable to be paid by appellant as no retrospective application has been 65 permitted or provided to the said Rules. Further it is said that appellant applied for authorisation under HWMH Rules, 1989 vide application dated 19/22.01.2002 and the same remained pending before the Competent Authority, hence, it cannot be said that appellant violated provisions of HWMH Rules, 1989 by storing Chromium waste generated in the process of manufacture of BCS within the factory premises. Learned Counsel for appellant said that appellant did not store or dumped hazardous waste containing Chromium at the questioned site, therefore, no liability could not have been imposed upon it and implication of appellant to hold guilty of violating environmental norms and the provisions of HWMH Rules, 1989 read with EP Act, 1986 is clearly misconceived and incorrect.
57. On the contrary, Learned Counsel for UPPCB said that the ultimate environmental compensation determined vide report dated 28.07.2022 is based on the production capacity, operational period and assessed quantity of dumped Chromium waste as per percentage of production, therefore, actually based on true facts where against appellant could not produce any material to contradict, hence, no interference is called for.
58. Shri Pradeep Mishra, Learned Counsel appearing for UPPCB strongly supported environmental compensation and liability imposed upon appellant and contended that admittedly appellant was engaged in manufacturing of BCS which resulted in generating hazardous waste containing Chromium and the same having not been disposed of scientifically as required by HWMH Rules, 1989, appellant is liable for payment of compensation by applying the principle of 'Polluter Pays' and since no otherwise material has been placed by appellant before Tribunal, the assessment of compensation by UPPCB is just valid and in accordance with law, hence warrants no interference. He also pointed out that 66 appellant has given different data and dates at different stages and documents, hence information given by appellant is wholly unreliable. He said that as per NOC/CTE, approved quantity of production of BCS was 5 MT per day but in the copy of application for authorization under HWMW Rules 1989, filed by applicant along with his objections dated 18.08.2022, production of BCS is shown as 3 MT. Similarly, with respect to date of closure of unit, appellant has mentioned 07.02.2005 but the documents filed with joint Committee's report show that closure orders were issued from time to time since appellant firstly violated environmental laws and later closure directions by running its unit despite closure orders and ultimately unit was sealed on 08.01.2008. He urged that applicant has been violator since commencement of its unit and has even misrepresented before this Tribunal.
59. It is also argued by Shri Pardeep Mishra that in the impugned order, reference has been made to HOWMTM Rules, 2016 which is apparently incorrect but that by itself will not vitiate the order in as much as mere mention of wrong provision will not vitiate the order if otherwise power is vested in the authority concerned. He argued that in place of HOWMTM Rules 2016, the reference may be made to and read as HWMH Rules, 1989. ISSUES:
60. From the arguments advanced by Learned Counsel for the parties as also from material on record and the rival submissions, in our view, following issues have arisen for adjudication by this Tribunal:
(I) Whether appellant commenced production in its unit in violation of the provisions of Water Act 1974, Air Act 1981 and HWMH Rules, 1989?67
(II) Whether appellant has dumped hazardous waste comprising Chromium on road side or other open place without any lawful authority and thus violated provisions of HWMH Rules, 1989 and also Water Act 1974 and Air Act 1981 by contaminating ground water, soil and air?
(III) Whether dumping of waste containing chromium inside the factory premises, if correct, as claimed by appellant, was lawful and valid in the light of HWMH Rules 1989.
(IV) If questions II and/or III are/is answered against appellant, what is the quantity of hazardous waste comprising Chromium which has been dumped by appellant illegally and what amount of environmental compensation, appellant is liable to pay, applying principle of 'Polluter Pays'?
(V) Whether imposition or demand of environmental compensation by UPPCB is within limitation or is otherwise not chargeable, by application of principle of laches or unreasonable delay?
(VI) Whether determination of environmental compensation by UPPCB against appellant is just valid or liable to be revoked or modified and if so, to what extent?
(VII) Whether appellant has violated any other law and if so, further action required to be taken?
(VIII) Whether appellant is entitled for any relief?
ISSUE I:
61. We proceed to consider, first, issue I in the light of relevant law, the facts available on record and also the arguments advanced by Learned Counsel for the parties.
62. It is admitted case of appellant that it was engaged in manufacturing 68 of BCS. CTE by UPPCB was granted to appellant on 11.09.2001, copy whereof is at page 62 of paper book. The subject of the document reads as under:
"पयावरणीय दषू ण क ि ट से नई इकाई क थापना हे तु अनाप माणप नगमन"
63. The subject clearly shows that this was an NOC/CTE i.e., no objection was issued to appellant for establishment of new unit from the point of view of environment. It was not a CTO for the unit which was already established and granted permission to run from point of view of environment. CTE provided various conditions some of which i.e., conditions no. 3, 4, 8, 9 and 15 are reproduced as under:
"3. उ योग इकाई म पर ण उ पादन तब तक ार भ नह ं करे जब तक के वह बोड से जल एवं वायु अ ध नयम के अंतगत सहम त ा त न कर ले। जल एवं वायु सहम त ा त करने हे तु इकाई म उ पादन ार भ करने क त थ से कम से कम २ माह पहले नधा रत सहम त आवेदन प को उ पादन पव ू थम आवेदन का उ लेख करते हुए इस कायालय म अव य ह जमा कर दया जाए। य द उ योग उपरो त का अनुपालन नह ं करता हे तो उ त अ ध नयम के वैधा नक ा वधान के अंतगत उ योग के व ध बना कसी पूव सूचना के व धक कायवाह क जा सकती है ।
4. उ योग म पर ण उ पादन के पूव हमारे े ीय कायालय वारा इकाई का नर ण सु नयोिजत कया जाये।
8. लज ाइंग बे स से ज नत होने वाले है ज़ा स स ज को तब तक अपने ह ांगण म लाई ड टक म एक कर जब तक है ज़ा स वे ट ड पोजल हे तु ता वत थान पर कायवाह पूण नह ं हो जाती है । त प चात अ धकृत थान पर न तारण सु नि चत कर य द उ योग प रसर म है ज़ा स वे ट भंडारण क मता समा त हो जाता है तो तदानुसार उ पादन ब द करना होगा ।
9. प रसंकटमय अप श ठ बंध एवं हाथालंन नयम 1989 को समू चत अनुपालन सु नि चत करते हुए ा धकार ा त कया जाना सु नि चत कर।
15. उ पादन ार भ कए जाने से पूव जल/ वायु दष ू ण नयं ण यव था एवं है ज़ा स वे ट ड पोजल हे तु उपयु त यव था पूण कया जाना सु नि चत कर तथा उपरो त सम त शत का समयब ध अनप ु ालन न होने क दशा म आप वारा जमा क गई बक गारं ट पय 25000/- को ज त कए जाने क कायवाह कर द जाएगी|"
"3. Do not start trial production in the industrial unit until it receives consent from the Board under Water and Air Acts. In order to obtain water and air consent, at least 2 months before the date of commencement of production in the unit, prescribed consent applications must be submitted to this office mentioning the first application before production. If the industry does not comply with the above, legal action can be taken against the industry without any prior notice under the statutory provisions of the said Act.69
4. Before starting the production in the industry, inspection of the unit should be arranged by our zonal office.
8. The hazardous waste produced by the sludge hazardous waste should be collected in the lined tank until the work completes at the proposed allocated place for hazardous waste disposal. After that it should be assured that the disposal of hazardous waste is being done at the allocated place and if the capacity of the industry is full for the disposal of hazardous waste the industry should be closed.
9. Authorisation as per Hazardous Waste (Management and Handling) Rules, 1989 should be assured to receive.
15. Proper arrangement be made for water and air pollution control management and hazardous waste disposal before starting production and in case of not compliying with the above mentioned conditions, action will be taken for confiscation of the bank guarantee of Rs.25000/- deposited by you."
(English Translation by Tribunal)
64. Appellant himself has stated in its protest letter dated 09.12.2019 that it commenced production in August 2001. The relevant extract of the admission of appellant is at page 125 of the paper book, as under:
"The company started its production form Aug 2001 and the operation of the company was stopped by the orders of the Uttar Pradesh Pollution Control Board on 07-02-2005."
65. Appellant treated CTE dated 11.09.2001 as a permission granted for operation of the factory unit which was clearly misconceived and a clear misreading of the conditions of CTE. The appellant started production of unit based on CTE though it was only a consent/NOC for the purpose of establishment of new unit and not a consent to operate the unit. Thus the very commencement of production by appellant was illegal.
66. Further, appellant himself has filed copy of the application dated 11.09.2001 under Rule 5 of HWMH Rules, 1989 for grant of authorisation. It is not the case of appellant that any such authorisation was issued. There is nothing on record to show that the said application in fact was submitted and received by the Competent Authority under HWMH Rules, 1989. The document filed by appellant as annexure-D to the objection 70 dated 18.08.2022 only show that applleant filled in the application but whether it was actually submitted or not, there is nothing on record to substantiate or support this fact. In any case admittedly no authorization was ever issued to appellant. Hence commencement of commercial operation and dumping of waste from very beginning was unauthorized and illegal and continued to be so.
67. Appellant further has said that it commenced production in August 2001 though in August 2001, even CTE was not issued. Therefore, the commencement of production by appellant was illeal and contrary to the environmental laws.
68. In the reply filed by UPPCB, it has been clearly stated in para 4.2 that CTE was granted to appellant by order dated 11.09.2001 wherein it was specifically mentioned that appellant will not start operation without obtaining consent under Water Act 1974 and Air Act 1981 and would comply with the norms prescribed under Water Act 1974 and Air Act 1981. Appellant was also to obtain authorisation under HWMH Rules, 1989 and comply the said Rules. However, neither appellant obtained CTO under Water Act 1974 and Air Act 1981 nor obtained authorisation under HWMH Rules, 1989. In this regard, notices/letters were also sent to appellant seeking compliance vide letters dated 29.10.1999, 14.02.2000, 16.06.2000 and 14.10.2004. These averments of UPPCB are not contradicted or disputed by appellant by filing any rejoinder or placing any other material on record.
69. With regard to closure of the unit also, it has been stated by UPPCB in its reply dated 02.12.2020 that for violation of environmental laws and norms, initially a show cause notice was issued to appellant on 20.11.2003 and, thereafter, a closure order was passed on 16.12.2003. Closure order 71 was suspended later on furnishing a bank guarantee of Rs. 50,000/- by the industry ensuring compliance of HWMH Rules, 1989 and other provisions. However, industry again continued to contravene the provisions of Water Act 1974, Air Act 1981 and HWMH Rules 1989, thereafter, closure order was again issued in January 2005. Appellant was found again violating and then another closure order was issued on 06.10.2005 by sealing the unit. Appellant opened the seal and continued with the consumption. Thereafter, further closure order was passed in December 2005. Again, appellant violated closure orders and ultimately unit was sealed on 08.01.2008. These facts, we find, are supported by the documents filed by joint Committee along with report dated 28.07.2022. The documents filed along with report dated 28.07.2022 which we have already discussed above also categorically demonstrate that appellant continousely violated environmental laws throughout.
70. From the above, we are satisfied that since very beginning appellant has violated environmental laws and norms in as much as even before obtaining CTE on 11.09.2001, it commenced operation of its unit and continued without obtaining CTO and also without obtaining any authorisation for disposal of its hazardous waste under the provisions of HWMH Rules, 1989. Appellant also repeatedly violated closure orders issued from time to time.
71. At this stage, we may also examine HWMH Rules, 1989 to demonstrate a few more apparent violations by the appellant.
72. HWMH Rules, 1989 were published in Gazette of India, Extraordinary dated 28.07.1989 and came into force on the date of publication in the official Gazette, vide Rule 1(2) of the said Rules. 72
73. Rule 2 talks of application of HWMH Rules, 1989 and says that Rules shall apply to handling of hazardous waste as specified in the Schedule.
74. Rule 3 contains definition of various terms used in HWMH Rules, 1989. For the present case, the definition of terms 'authorisation', 'authorised person', 'hazardous wastes', hazardous wastes site' are relevant and reproduced below as under:
"(c) "authorisation" means permission for collection, reception, treatment, transport, storage and disposal of hazardous wastes, granted by the competent authority in Form 2;
(d) "authorised person" means a person or an organization authorised by the competent authority to collect, treat, transport, store or dispose of hazardous wastes in accordance with the guidelines to be issued by the competent authority from time to time;
(i) "hazardous wastes" means categories of wastes specified in the Schedule;
(j) "hazardous wastes site" means a place for collection, reception, treatment, storage and disposal of hazardous wastes which has been duly approved by the competent authority;"
75. Rule 4 puts responsibility upon the occupier generating hazardous waste in quantity equal to or exceeding the limits in column 3 of the Schedule to take all practical steps to ensure that such wastes are properly handled and disposed of without any adverse effects which may result from such wastes and the occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of the wastes either himself or through the operator of facility.
76. Rule 5 talks of authorisation for handling hazardous wastes and also provided procedure for such authorization. Sub-rule 2 of Rule 5 says that every occupier generating hazardous wastes and having a facility for collection, reception, treatment, transport, storage and disposal of such wastes shall make an application in Form 1 to the State PCB for the 73 grant of authorization for any of the above activities.
77. Rule 7 talks of packaging, labelling and transport of hazardous wastes in a manner suitable for storage and transport.
78. Rule 9 talks of records and returns to be maintained by occupier and operator of a facility and reads as under:
"9. Records and returns (1) The occupier generating hazardous waste and operator of a facility for collection, reception, treatment, transport, storage and disposal of hazardous waste shall maintain records of such operations in Form 3.
(2) The occupier and operator of a facility shall send annual returns to the 2 [State Pollution Control Board or Committee] in Form 4."
79. It is not disputed before us that wastes comprising Chromium is covered by waste category 3 in Schedule of HWMH Rules, 1989 since chromium is a metal mentioned in the Schedule. The relevant entry reads as under:
"SCHEDULE: CATEGORIES OF HAZARDOUS WASTES [Rule 3(i), 3(n) and 4] Waste categories Types of Wastes Regulatory Quantities Waste Category No. Waste containing 10 kilogrammes per 3 water soluble year the sum of the chemical compounds specified substance of lead, copper, Zinc, calculated as pure Chromium, nickel, metal.
selenium, Barium
and antimony
80. Thus, from the above, it is evident that responsibility of occupier for handling of wastes is provided under Rule 4; duties of occupier are prescribed by Rule 4(A) (inserted vide amendment Rules notified vide notification dated 06.01.2000); procedure for grant of authorisation for handling hazardous wastes is provided in Rule 5 and packaging, labelling 74 and transport of hazardous wastes is dealt with vide Rule 7; procedure for identification of disposal sites for establishing facility for treatment, storage and disposal of hazardous waste is provided Rule 8; and Rule 9 talks of record and returns which are to be maintained by occupier generating hazardous wastes and operator of a facility for collection, reception, treatment, transport, storage and disposal of hazardous waste.
81. The above Rules clearly were violated by appellant thoughout as no authorisation was ever obtained under HWMH Rules, 1989. Appellant has admitted that it commenced production in August 2001 and has also stated in its protest letter dated 09.12.2019 on page 126 that capacity of the unit for production of BCS was 3 MT/day and its waste discharge was about 1.5 MT/day. However, NOC/CTE dated 11.09.2001 shows that approved production capacity of BCS was 5 MT. Self same moderation of production capacity has no documentary basis.
82. Further, letters dated 04.09.2003, 19.07.2005 and 15.06.2010 and inspections/inspection reports dated 02.09.2003, 19.09.2005, 09.06.2006, 03.10.2011 and 15.06.2009 clearly show that the waste was being dumped outside the factory premises illegally as also inside the factory premises on kacha land i.e., not observing the safeguards meant for proper storage of hazardous waste inside the factory premises. The pucca tank was not used for said dumping and at the time of inspection dated 19.09.2005, pucca tank was found filled with rain water while some quantity of chromium waste was lying on a kacha land inside the factory premises and also dumped outside the factory premises on the road side and nearby land. Appellant also did not maintain any record as contemplated in Rule 9 and at least none has been produced before this Tribunal. It is also a continuous violation of HWMH Rules, 1989.75
83. The Learned Counsel for the appellant submitted that it submitted application dated 11.09.2001 hence inaction cannot result in punishing the appellant. Without looking into the facts as to whether such an application was actually submitted or not as no such document of acknowledgment has been placed before us and assuming for the sake of consideration that such an application was submitted but the fact remains that no authorisation was ever issued to the appellant under HWMH Rules, 1989. The law is very clear that mere submission of application does not mean grant of requisite permission/consent/clearance or authorisation. In the present case, it could not be disputed by appellant that at no point of time, any authorisation was ever issued to appellant under HWMH Rules, 1989. This is a clear violation of HWMH Rules, 1989 on the part of appellant. Moreover, appellant commenced production in August 2001 without obtaining CTE and ultimately, also failed to obtain CTO under Water Act, 1974 and Air Act, 1981 and authorisation under HWMH Rules, 1989. In the result, the conclusion is inevitable that appellant has violated statutory provisions since beginning/commencement of production in its unit in question and continued with such violations.
84. In view of the above discussion, issue I is answered affirmatively i.e., against appellant.
ISSUE II
85. The most relevant issue raised by appellant is that it has not dumped any hazardous waste outside the factory premises as alleged and, therefore, this issue requires to be considered more seriously. Here, we find that there is admission on the part of appellant and subsequent contradictory stand is nothing but an afterthought.76
86. In the memo of Appeal, appellant has said that waste comprising chromium was stored within the factory premises but this claim is self-
contradicted to the stand taken by appellant as is evident from record, as under:
A) Annexure A/10 at page 123 of the paper book, is a copy of the appellant's letter dated 09.12.2019 sent by Shri Kirtiman Singh Raikwar, Director of appellant's company addressed to Member Secretary, UPPCB, Lucknow.
B) At page 126 , the appellant has said as under:
"However, since no immediate respite was provided by the Uttar Pradesh Pollution Control Board, and there was the private site at which several (about 24) chromium-based factories (both from Kanpur Dehat and Kanpur Nagar)) were dumping Chromium waste, the undersigned company also dumped its waste produce on the said site."
C) Appellant has also admitted in his letter i.e., annexure A/10, at page 126 that in-house pucca dump situated within factory premises was full and, thereafter, company along with other chromium based factories approached UPPCB for arranging disposal site for dumping of the waste produced. This approach is said to have been made in 2001. Thus, it is also admitted by appellant that the dump inside factory was full long back, with waste stored therein and, conclusion is inevitable that thereafter, waste was dumped outside the factory premises.
D) It has also been stated at page 128 that ill effects of dumping of Chromium waste is on account of inaction and denial of permission by UPPCB for transfer of dump to the common Secured landfill which was completed in 2005. The relevant extract on page 128 on the appellant's own letter dated 09.12.2019 reads as under:
"As such, neither the dump (including chromium) lying in the impugned locality was shifted by the UPPCB, nor the 77 UPPCB permitted the undersigned company and of the society to shift the dump to the constructed landfill. As such, any ill effects that may have been caused due to the percolation and seepage of the chromium from the aforesaid dump was solely due to inaction and denial of permission by the UPPCB in the year 2005 and delay in the construction despite the transfer of land by the State Govt. to the UPPCB in the year 1994 for the said purposes."
87. It is only later, appellant has changed its stand but having seen the contradiction and initial stand of appellant, we are satisfied that appellant has dumped its hazardous waste comprising Chromium at the questioned site outside the premises of its factory.
88. There are documents to show that alleged dumping inside the factory premises was only partial and at some point of time, there was no dumping inside the factory premises instead dumping of hazardous waste was outside the factory premises and this was brought to the notice of appellant time and again. The letters dated 04.09.2003, 19.07.2005 and 15.06.2010 and inspections dated 02.09.2003, 19.09.2005, 09.06.2006, 03.10.2011 and 15.06.2009 show that appellant was dumping chromium waste outside the factory premises and despite repeated warnings and instructions, did not take any step for removal thereof for handling the same in a scientific manner. From the above material and discussion, we are satisfied that appellant is guilty of dumping hazardous waste containing chromium outside the factory premises particularly, in the light of his own admission and otherwise claim set up is an afterthought and hence not accepted.
89. Even some dumping of waste inside the factory premises was illegal since for that also there was no authorization issued under HWMH Rules 1989.
90. We may notice at this stage that dumping of waste containing 78 chromium is a very serious violation since chromium is very toxic and its storage at unauthorized site is bound to cause serious damage to environment. To appreciate this aspect, we may examine the nature of Chromium with regard to toxicity and adverse effects, if any, it has on human health and environment.
91. Toxicity of Chromium: Waste containing Chromium is highly toxic liable to cause severe damage to environment in various ways and ultimately health of people at large. This factum about toxicity of chromium metal has also not been disputed before us by Learned Counsel for appellant. It has also come on record that the type of Chromium waste found in the dumped hazardous waste at the questioned site is 'Hexavalent Chromium' i.e., Cr (VI). It is highly toxic and carcinogenic form of Chromium metal. It can enter environment through improper treatment of industrial waste water. Industrial waste lying on open land, by the process of percolation of leachate, contaminates ground water as also soil.
92. In an Article titled as "Toxic and genotoxic effects of hexavalent chromium in environment and its bio-remediation strategies" written by Sandhya Mishra and Ram Naresh Bhargawa, published in the Journal of Environmental Science and Health, Part C volume 34 (2016-Issue I), it is pointed out that Chromium is one of the major inorganic environmental pollutants, which is added in the environment through various natural and anthropogenic activities. It exists mainly in two forms; Cr (III) and Cr (VI). Cr (VI) is considered to be more toxic than Cr (III) due to its high solubility and mobility. It is a very reported occupational carcinogen associated with lung, nasal and sinus cancer.
93. In a review titled as 'Sources and Toxicity of Hexavalent Chromium' 79 by Rumpa Saha, Rumki Nandi and Bidyut Saha, published in the journal of Coordination Chemistry, Volume 64, (2011-Issue 10), it is said that Chromium exists in oxidation states ranging from −IV to +VI, inclusively. The compounds exhibit a wide range of geometries including square planar, tetrahedral, octahedral and various distorted geometries. Ore refining, chemical and refractory processing, cement producing plants, automobile brake lining, catalytic converters for automobiles, leather tanneries, and chrome pigments contribute to the atmospheric burden of chromium. Hexavalent chromium i.e., Cr (VI) is known to have 100-fold more toxicity than trivalent Chromium i.e., Cr (III), for both acute and chronic exposures because of its high water solubility and mobility, as well as easy reduction. The respiratory tract is the major target organ for hexavalent chromium following inhalation exposure in humans. Chronic inhalation exposure to hexavalent chromium results in effect on the respiratory tract, with perforations and ulcerations of the septum, bronchitis, decreased pulmonary function, pneumonia and nasal itching and soreness, as reported. Chronic human exposure to high levels of hexavalent chromium by inhalation or oral exposure may produce effects on the liver, kidney, gastrointestinal, and immune systems, and possibly the blood. Dermal exposure to hexavalent chromium may cause contact dermatitis, sensitivity, and ulceration of the skin.
94. Another research Article titled as 'Chromium Toxicity and its Health Hazards' by Kirti Shekhawat, Sreemoyee Chatterjee and Bhumika Joshi, published in International Journal of Advanced Research in July 2015, it is said that Chromium is one of the major industrial wastes produced from industries like textiles, tanneries, electroplating, metallurgical which causes health issues in humans and animals and also affects marine life. It is most abundant mineral in Earth's crust. Chromium has an atomic 80 number 24 in periodic table and relative atomic mass of 51.996. It occurs in almost all oxidation states ranging from -2 to +6. But in environment, Chromium is mostly stable in trivalent and hexavalent form i.e., Cr (III) and Cr (VI). Chromium which is present in 0 oxidation state is biologically inert and is not naturally present in Earth's crust while Cr (III) and Cr (VI) are originated from industries. The available form of Chromium is as halides, oxides and sulphides. It is the +2 oxidation state of chromium which is unstable and can be easily oxidized to +3 forms in the presence of air.
95. According to Indian Standards, maximum tolerance for total chromium in water supplies is 0.05 mg/L. Chromium and its compounds get absorbed in human body through the exposure to oral, dermal and inhalation routes. Cr (III) is less absorbed than Cr (VI) and this leads to a difference in their transport methods to cells. Cr (VI) i.e., Hexavalent Chromium enters into the cell via a non-specific anion channel by facilitated diffusion while Cr (III) enters by passive diffusion or phagocytosis. Human liver, kidney, spleen and bone have more concentration of Chromium in comparison to other organs. Cr (VI) has ability to easily penetrate in RBC. Because of its bio-availability, Cr (VI) enters into RBC and gets converted into Cr (III) which binds to the cellular components and then it is unable to leave RBC. The structure of cells somewhat resembles to the structure of RBC. Due to this, Cr (VI) can be easily uptaken by other cells. Also due to oral, intravenous and intra tracheal administration of Cr (VI), its level in tissues increase. Absorption of Cr depends on some factors which are particle's size, oxidation state and its solubility but majorly on the interaction with biomolecules in lungs. The main reduction of Cr (VI) to Cr (III) takes place in tissue of lungs. In respect of Cr (VI), the above research said that it is second stable form 81 of chromium and has a strong oxidizing property. Cr (VI) binds to oxygen and form chromate and dichromate. Cr (VI) has the ability to cross biological membrane and reacts with proteins and nucleic acid. Through feacal test, it is concluded that 10% of the dose is absorbed in gastrointestinal tract. Cr (VI) gets reduced to Cr (III) in lower respiratory tract by pulmonary alveolar macrophages. Cr (VI) enters into blood stream and then taken up by RBC, gets reduced and bound to hemoglobin.
96. Cr (VI) compounds, due to their solubility and reactivity, cause sensitization and allergic reaction. Cr (VI) is an extremely sensitized agent. It can be said in totality that Chromium is responsible for toxic effects in human and it causes allergenicity and carcinogenicity in humans and in animals also. Cr (VI) is mainly responsible for all carcinogenic activity in comparison to Cr (III). With all the toxic effects, there are clear evidence of asthmatic responses sometimes with respiratory exposures. It is responsible for dermatitis allergy; perforation in nasal septum and some cases of lung cancer is also evident. Due to exposure to Chromium, some genetic alteration also takes place which is harmful for human health. Excess of chromium cause patches on skin and lung cancer.
97. Cr (VI) is classified as known 'human carcinogen' by International Agency for Research on Cancer (hereinafter referred to as 'IARC'). The conclusion of IARC is based on evidence in humans that Cr (VI) compound cause cancer of the lungs and positive associations observe with cancer of nose and nasal sinuses.
98. In the Article 'Ecological Risk Assessment of Hexavalent Chromium and Silicon Dioxide in Well Water in Maros Regency, Indonesia' published in Gaceta Sanitaria (Volume 35, Supplement 1, 2021), it is said that Cr (VI) has been classified as carcinogenic compound. Residents exposed to 82 Cr (VI) are confirmed to have digestion, dermatological and hema-tological abnormalities. Heavy concentration of Cr (VI), therefore, is bound to affect health seriously. Heavy metals can pollute wells through movement of ground water and surface water. Leaching processes from top-soil and rock soils are natural sources and play an important role in flow of chromium to ground water.
99. From the above referred research papers and other relevant material available in the public domain, it is well-established that Cr (VI) is considered to be a carcinogen and may cause various diseases to human being when its concentration exceeds permissible limit whether at the top soil or ground water including bore well water.
100. In the present case, toxic waste i.e., the waste comprising Chromium (Cr VI) was found spread about 5 meters on the right side of Kanpur, Jhansi Highway in village Khan Chandpur, District Kanpur Dehat. In the report of Justice Arun Tandon, photographs of dumps are appended. The report also said that the land over which Chromium dump was lying, is either a private land or a land belongs to Gram Sabha. The toxic effects caused due to the aforesaid dumping are also reported in the said report stating that the water coming out from hand pump/bore well was coloured and unfit for drinking; samples were collected from various places within radius of around 150 meters both towards the highway from the dump as well as from the opposite direction; at all places, Committee found that colour of water, sample whereof were taken, was greenish; even water from bore well situate within a factory and more than 150 meter deep was found greenish in colour; the water coming out from hand pumps being used by inhabitants of the locality was also found green in colour; and physical disability generated due to use of contemned water, was also 83 reported in the said report.
101. Thus, it can be concluded that dumping of waste comprising Chromium is highly toxic, dangerous to environment since due to percolation of leachate ground water gets contaminated and when used, it affects human health. In the present case, dumping of chromium waste illegally has contaminated soil and groundwater and has also caused health hazards to people residing in the area.
102. In view of the above discussion, we answer Issue II in affirmation and against appellant.
ISSUE III
103. Considering the findings recorded in respect of Issue II above, we are satisfied that the claim of the appellant that it was dumping hazardous waste containing chromium inside the factory premises, is not correct factually and even otherwise, is not borne out from record. On the contrary, the record shows that it was brought to the notice of appellant repeatedly by officials of UPPCB that appellant's unit was dumping hazardous waste comprising chromium on road side and other places and not in the factory premises but appellant did not mend its ways. Documents placed on record along with the report dated 28.07.2022 show that RO UPPCB, Kanpur Dehat informed appellant that during site visit, it was found that unit was dumping hazardous waste comprising chromium outside the factory premises which is not in public interest. Appellant in the objections filed to the report has neither disputed existence of the said letter nor the contents thereof. It is also not the case of the appellant that above letter was never communicated to it.
104. Inspections dated 02.09.2003 also reiterate the findings that 84 appellant was dumping its hazardous solid waste comprising chromium outside the factory premises. Nowhere the above inspections and findings recorded therein were/are disputed by appellant. Therefore, the first thing that the appellant was dumping waste inside factory premises is not correct.
105. Secondly, even otherwise no authorisaiton was obtained by appellant in respect of any site for dumping of waste inside factory premises. The definitions of 'hazardous waste site' under Rule 3(j) of HWMH Rules, 1989 clearly talks of a place for collection, storage, disposal etc. of hazardous waste which has been duty approved by Competent Authority. Under HWMH Rules, 1989, no site in the factory premises was approved by Competent Authority for storage, disposal etc. of hazardous waste. Therefore, even otherwise, storage of hazardous waste inside factory would not have been lawful or valid and instead, it violated HWMH Rules, 1989 and if some quantity of waste was dumped inside the factory premises, even that was unauthorized and illegal.
106. Issue III is answered accordingly and against appellant. ISSUE IV:
107. In the present appeal, environmental compensation computed by RO UPPCB has been assailed. The compensation has been determined holding appellant liable to pay such compensation applying principle of 'Polluter Pays'. This principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212. Certain industries producing assets were dumping their waste and even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit 85 for human consumption. Certain environmentalists' organizations broadly alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Director Principle of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavor to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizen says to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creature. Proponent has established to operate its commercial unit contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987)1SCC395, Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India (1995)3SCC77, wherein PCB identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate to farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to 86 the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:
"67. ...The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Co- operation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that `the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles:
the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."
108. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. Court further said:
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"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
109. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996(5)SCC647. In para 25, direction no. 2 reads as under:
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays"
principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
110. In Bittu Sehgal and Another vs Union of India & Others (2001)9SCC181, referring the earlier judgments, Supreme Court has said that precautionary principle and 'Polluter Pays' principle have been accepted as part of the law of the land.
111. In Research Foundation for Science vs. Union of India & Ors., (2005)13SCC186, in para 26 and 29, Court, on 'Polluter Pays' Principle, has said as under:
26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.88
29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.
112. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others (2006)6SCC371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
113. Applying the above principle of 'Polluter Pays', it thus cannot be doubted that the appellant, having dumped hazardous waste containing chromium (Cr VI) at the questioned site and thereby causing damage to environment and also affecting local people's health, is liable for restoration of the damage caused to environment and to bear its cost. Appellant thus has to pay environmental compensation.
114. Now the question is, what should be that cost or environmental compensation. In other words, how much environmental computation is payable by appellant. What are the norms to compute environmental compensation is the moot question.
115. Environmental compensation shall have the element of damage to environment, cost of remediation, deterrent factor and other relevant aspects. Issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears reasonable nexus with the environmental damage and its 89 remediation/restoration.
116. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:
(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, Forest clearance; NOC for extraction and use of ground water; environmental clearance under Environment Impact Assessment Notification 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, wherever applicable, and similar requirements under other statutes.
(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.
(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.
117. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.
118. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc. 90
119. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.
120. Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.
121. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes risk assessment. The concept of risk assessment will include human health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human- health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.
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122. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step comprised of two components, i.e., risk assessment and risk description.
123. In totality, problem is multi-fold and multi-dimentional. Solution is not straight but involves various shades and nuances and vary from case to case. Even internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied.
124. Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond carrying capacity, results are harmful and dangerous. People do not understand the value of what nature has given free. Recently in Covid-19 wave II, scarcity of oxygen proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different.
125. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution 92 standards have been violated, Total Pollution Cost (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean-up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally.
126. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'sustainable development', 'precautionary approach' and 'Polluter Pays' etc.
127. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor 93 or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.
128. Coming back to the present case, Rules for handling, storage, management, etc. of hazardous waste were initially framed in 1989 which were superseded by HWMHTM Rules, 2008 published vide MoEF notification dated 24.09.2008 in the Gazette of India, Extraordinary of the same date and again, Hazardous Waste Rules, 2008 were superseded by HOWMTM Rules, 2016. However, in the above Rules, there was no mechanism provided for determination/assessment of environmental compensation for violation of the aforesaid Rules. This was a serious gap and noticed by this Tribunal in OA No. 804/2017 (Earlier OA No. 36/2012), Rajiv Narayan & Anr. vs. Union of India & Ors. Vide order dated 12.04.2019, directions were issued to CPCB to determine, within one month, the scale of compensation to be recovered for violation of the Rules. Pursuant thereto, CPCB in May 2019, issued guidelines titled as 'Determination of Environmental Compensation to be recovered for violation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016'. Reference of HOWMTM Rules, 2016 was given in the guidelines of May 2019 since only those Rules were in operation at the time of issue of the guidelines but in effect, the guidelines provided mechanism of determination of environmental compensation for violation of the Rules pertaining to handling, storage, 94 transport etc. of hazardous waste. In respect of the circumstances applicable in the present case, the formula prescribed therein is as under:
Environmental Compensation = ERF × Q × R
129. Here Q is Quantity of hazardous or other waste which has not been managed with the provisions of environmental laws and norms; ERF is Environmental Risk Factor and R is Environmental Compensation Factor in Rupees.
130. Value of ERF applicable in the present case is 1.5 and R is Rs. 30,000/- as is evident from notice dated 24.10.2019, issued by RO UPPCB to appellant. This is not disputed by appellant though it disputed application thereof upon appellant. Value of Q i.e., quantity has to be determined after considering the relevant facts, applicable and available on record, in the present case.
131. Learned Counsel for appellant has said that the aforesaid formula was prescribed by HOWMTM Rules, 2016 and, therefore, would not apply to the transactions of the period between 2001 to 2005. However, we do not find that any such formula, for computation of environmental compensation, has been prescribed by HOWMTM Rules, 2016. The submission is not supported by documents. While we agree with the appellant's counsel's submission that HOWMTM Rules 2016 would not apply in this case, we do not find anything in the said rules to show that the above formula is part of the said rules. The formula is part of guidelines issued in May 2019.
132. It is also contended that value of R is prescribed as Rs. 30000/- per ton, by CPCB very recently, hence it cannot be applied to appellant as such and instead value of R should be taken with corresponding reduction in 95 value as it ought to be in 2001-2005. In our view, since damage is continuing, the present value of R can safely be applied in the present case. Appellant has committed a crime under EP Act 1986 and Water Act 1974 by dumping hazardous waste at questioned site and took no steps for its removal. It has violated law when actually dumped waste containing chromium and continued such violation by not removing it and allowing to remain dumped so as to continuously contaminate groundwater. The dumped waste has continuously remained lied at the questioned site till date and causing damage to environment continuously. Now appellant cannot be allowed to take advantage of its own wrong. It is not open to appellant to contend that since UPPCB has failed to take remedial steps in time hence lapse of time should contribute to his advantage. Appellant has failed in observing its statutory obligations and such failure is continuing till date hence appellant has to bear cost which in presenti may be borne by Statutory Regulator. We, therefore, reject the otherwise submission advanced on behalf of appellant.
133. In fact, CPCB guidelines providing the above formula are not under challenge in the Appeal. Though, we find that the guidelines have been held in some other cases by this Tribunal as providing meagre amount as value of R but in the present case, since it is an Appeal and the order of RO UPPCB is under challenge, we will examine correctness of the manner of application of the formula applied by RO UPPCB based on guidelines of CPCB and would not go to examine correctness of the guidelines of the formula prescribed by CPCB since it is not under challenge by appellant before us.
134. Determination of Quantity of Waste Dumped by Appellant:
Appellant was producing BCS and other bye-products from chromite ore.96
The composition of chromium ore for production of BCS and process of making BCS are well-known and described in various scientific journals.
135. Chromite ore: Chromite ore consists of varying percentages of Chromium, iron, aluminum and magnesium oxides as the major components. It has been classified into three grades associated with their use and chromic oxide content; metallurgical (greater than 46%), chemical (40-46%) and refractory (less than 40%) grades. Technological advances have allowed considerable interchangeability among the various grades, particularly the so-called chemical grade which can be utilized in all three industries. A more definitive classification is: (i) 'high-chromium' chromite (metallurgical-grade), containing a minimum of 46% chromic oxide and chromium : iron ratio greater than 2:1; (ii) 'high-iron' chromite (chemical- grade), with 40-46% chromic oxide and a chromium : iron ratio of 1.5:1 to 2:1; and (iii) 'high-aluminium' chromite (refractory-grade), containing more than 20% aluminium oxide and more than 60% aluminium oxide plus chromic oxide.
136. Process of making BCS: BCS also claimed as Chromium powder is a kind of crucial inorganic chemical product widely used in printing, dyeing, pottery, green ink and tannery industry etc. In tanning industry, it is a kind of extremely important chrome tanning agent. BCS is mainly a mixture of chrome sulfate and sodium sulfate, a green colored powder containing chromium tri-oxide [Cr2O3] (26%) and Na2(SO4) < 26% with basicity of 33%. BCS is produced by reaction of chromic oxide and sulfuric acid followed by reduction by sulfur-di-oxide (SO2). There are various methods, details whereof, it is not necessary for us to go, and suffice to say that chromite ore is used to produce compounds of Chromium or its derivatives. Raw materials for most of 97 the chrome auxiliaries or chemicals are sodium di-chromate or chromate which is produced from chromite ore. Normally, BCS is produced with basicity of 33%. Products with higher basicity for example 42% or 50% may be obtained by the addition of sodium carbonate.
137. There is a detailed research paper on the subject titled as "Advances towards a Clean Hydrometallurgical Process for Chromite" by Bo Zhang, Peiyang Shi and Maofa Jiang published on 28.01.2016 in Minerals 2016. The paper contains details of preparation technology of chromium salt. It is stated therein that acute carcinogenic capacity of Cr (VI) has caused a serious concern and pollution problem by chromite process residue at a global level. Researches were going on to resolve pollution problem and various methods were subjected. Appellant used sulphuric acid and caustic soda besides chromite ore in the technology adopted by it and this is called 'alkali treatment technology'. The above paper has said, "the technologies based on the alkali treatment cannot fundamentally resolve the pollution problem, because the oxidation of Cr (III) to Cr (VI) is unavoidable during chromite decomposition". According to the aforesaid study, recovery of chromium is usually in the range of 75% to 81%. It is also said that the toxic residue of industrial chromium salts is mainly linked to sodium dichromate production and preparation of one ton of sodium dichromate can generate about 2.5 tons of residue in which Cr (VI) content is ≥0.4%, present in the carcinogenic calcium chromate phase. There is another process of non-calcium roasting process wherein recovery of chromium may reach to >90% but recovery of chromium salt from chromite ore >100% is not provided in any scientific literature on the subject. Therefore, the figures of purchase of chromite ore given by appellant is not reliable.
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138. However, it also cannot be doubted that the manner in which computation of environmental compensation has been done by respondent is also not sustainable. Learned Counsel for UPPCB did not dispute that the total quantity of waste collected at the questioned site reflected the period of 1976 and onwards but admittedly, appellant commenced its production only in August 2001, therefore, for the waste dumped at the questioned site prior to August 2001, no liability could have been fastened upon the appellant. In a mechanical manner, entire quantity of 62225 MT has been divided proportionately between six units initially and thereafter, eleven units and then eight units respectively. We express our strongest disapproval to the manner in which RO UPPCB has acted in this case. Determination of environmental compensation is a serious matter and must be discharged impartially, objectively and on relevant material. Whimsical, capricious or arbitrary computation of environmental compensation is nothing but gross abuse of process of law and power. We have no hesitation in observing that in this particular case there is a complete failure on the part of Statutory Regulator and in particular, RO UPPCB in discharge of its duties for implementation of environmental laws. Appellant commenced business operations by running its unit without requisite clearances/consents but officials of UPPCB also failed to check them and no action punitive or otherwise was taken to prevent such illegal functioning. Secondly, factum of dumping of hazardous waste comprising chromium came to the notice of concerned RO UPPCB long back and within short period of commencement of production by appellant's unit, still except of sending letters and notices, no effective, preventive, punitive and remedial action was taken. It is only when this Tribunal came across the information about such massive violation of environmental laws and norms and contamination of ground water 99 affecting health of local people and issued directions for remedial action, the concerned Statutory Regulator has acted/reacted but that too in a very perfunctory, casual and negligent manner. We condemn and disapprove such conduct and functioning of officials of UPPCB and direct Competent Authority to take appropriate action against erring officials in accordance with law.
139. We also express our disapproval to the manner in which environmental compensation has been determined by RO UPPCB, Kanpur Dehat. On the one hand, it has applied the formula of EC=Q × ERF × R but for determining the value of Q, it has not considered the contribution of appellant as such but taking total quantity of dumped waste at questioned site as 62225 MT, it has divided the same by taking appellant's production capacity of 3 MT/day in proportionate to other unit's production capacity and on that basis, has arrived at the quantity of waste differently on all the three occasions. This methodology followed by respondent is palpably erroneous and condemnable.
140. For the purpose of computation of environmental compensation and quantity of hazardous waste generated by appellant, we have two ways of computation as under:
a) Appellant himself has disclosed total production of 4288.871 MT from 2001-2005. If we compute generation of waste in the ratio appellant himself has stated i.e., 1.5 MT for production of 3 MT BCS, it will come to 2144.43 MT. This is waste generation computed on the basis of production figures given by appellant in its chart filed Annexure-C to the objections dated 18.08.2022.
The information furnished by appellant vide chart filed as annexure-C is apparently unreliable. It is not disputed that 100 chromite ore is the basic raw material for the production of BCS and its bye-products. Appellant's production commenced in August 2001 and continued upto 2005 as per appellant while documents filed with report dated 28.07.2022 shows that unit was ultimately sealed on 08.01.2008. Appellant had shown that in 2001-02, it consumed 697.505 MT of the chromite ore while produced BCS, sodium chloride and sodium sulphate to the total quantity of 634.500 MT while in the year 2002-03, the consumption of chromite ore was 1067.870 MT and total production was 1174.818 MT i.e., consumption of basic raw material was less than total production which is wholly improable. The same situation stands depicted from the figures given for 2003-04 where consumption of chromite ore is 945.460 MT and total production is 1324.223 MT and in 2005-06, chromite ore consumed is 442.900 MT and total production is 592.360 MT which is improbable. It could not be explained as to how more production could have resulted from lesser quantity of raw material. Even total production of all the five years is shown as 4288.871 MT while chromite ore consumed is only 3833.475. The chromium waste generation of 479.180 MT has been shown by appellant in the above chart which is without any basis. When quantity of chromite ore was less, the question of further generation of chromium waste would not arise in as much as otherwise total production plus chromium waste would come to 4768.051 MT which quantity has been generated, as shown by appellant, from a meagre quantity of 3833.475 MT of chromite ore. The above chart, therefore, is a manufactured document, wholly reliable and hence rejected.
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b) The second way is based on the days of production. The appellant commenced its unit in August 2001 and as per the record of UPPCB, unit continued to work upto December 2005. It was allowed to operate but again violated, many closure orders were issued but appellant continued working of unit violating closure orders and ultimately it was sealed on 08.01.2008. However, giving latitude towards business fluctuations, we compute working period upto December 2005.
c) Taking 25 days in a month, the total working days comes to 1325 days (from August 2001 to December 2005). If 3 MT BCS is produced every day, total production would come to 3975 MT. As per the disclosure of appellant about 1/3rd production of bye- product, therefore, 1/3rd production of bye-product would be 1325 MT. The total production would come to 5300 MT. If 3 MT BCS could produce 1.5 MT chromium waste, then 5300 MT BCS would produce 2650 MT chromium waste.
141. In this case, we find that as per CTE, production of BCS was approved for 5 MT/day and 4MT/day for other products. However, it is said that later actual production was lesser and, therefore, we have computed the quantity above on a lesser quantity of BCS i.e., 3 MT/day hence we do not find any reason to give any further relaxation to the appellant in the total production which we have calculated. Thus, we hold that the quantity of waste generated by appellant was 2650 MT.
142. Environmental compensation on the above quantity of waste would stand computed as under:
EC= 2650 (Q) × 1.5 (ERF) × 30000 (R) i.e., Rs.11,92,50,000/-.
143. Issue IV is answered accordingly holding that appellant dumped 102 2650 MT hazardous waste containing chromium and liable to pay environmental compensation of Rs. 11,92,50,000/-. ISSUE V:
144. The major objection taken by appellant against imposition and demand of environmental compensation is on the ground of limitation. It is contended that appellant's unit actually functioned between 2001 to 2005 or upto January 2008 as stated by respondent but during that period, no compensation was imposed upon it. For the first time, demand of environmental compensation was raised by RO UPPCB vide order dated 19.11.2019 whereagainst appellant approached this Tribunal in OA No. 19/2020 (supra) which was disposed of on 28.01.2020. Pursuant to Tribunal's order dated 28.01.2020, appellant submitted a representation dated 10.02.2020 whereafter order dated 28.05.2020 was passed maintaining environmental compensation of Rs. 39,98,57,850/-. Against this order, the present Appeal was filed and during pendency of Appeal, quantum of environmental compensation was re-visited by RO UPPCB and in the report dated 30.09.2021, the revised environmental compensation was computed as Rs. 11,45,66,431/-. Tribunal in its order dated 12.11.2021 found that the re-determined compensation was not in accordance with Tribunal's order in as much as no specific finding was recorded about attributability of default to particular unit and report did not show scientific exercise for determining liability. Pursuant to Tribunal's order dated 12.11.2021, another compliance report dated 28.07.2022 was filed and environmental compensation was re-revised to Rs. 14,61,66,557/-. On three occasions, three different amounts of environmental compensation has been determined and that too highly belatedly.
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145. It is contended that after closure of the unit on 2005/2008, environmental compensation determined in November 2019, i.e., after more than 14/11 years is per se barred by limitation and in any case, it is impermissible having been demanded after lapse of extraordinary length of time. If no period of limitation is prescribed under Statute for computation of environmental compensation by application of 'Polluter Pays' principle by Statutory Regulator, the law provides that power should be exercised within reasonable time and such reasonable time cannot be stretched or expanded to more than 14/11 years. Due to lapse of long time, imposition of environmental compensation upon appellant is vitiated and liable to be set aside.
146. Learned Counsel on behalf of appellant did not dispute that for exercise of power of imposition of environmental compensation by RO UPPCB, no period of limitation is prescribed under any Statute. In the circumstances, it has to be examined whether lapse of more than a decade in computation and demand of environmental compensation from appellant would vitiate the demand or not. In this regard, we may first examine the authorities relied by appellant in support of the above argument.
147. First judgment of Supreme Court relied in this regard is, Shalimar Works Ltd. vs. Workmen (supra). The matter had arisen before a three Judges' Bench of Supreme Court in the proceedings, arising under Industrial Disputes Act, 1947. There were certain disputes between the workmen and employer namely M/s. Shalimar Works Limited. Workmen raised industrial dispute which was referred to Industrial Tribunal (Sixth) for adjudication by Govt. of West Bengal. On the matter of profit-sharing bonus and reinstatement of 250 workmen, Industrial Tribunal gave its 104 award where against both the parties filed appeal before Labour Appellate Tribunal. Appellate Tribunal did not interfere with the award of Industrial Tribunal and dismissed Appeal with one modification namely, by adding that, if in any year, it was found that bonus worked out according to award of Industrial Tribunal was less than profit bonus, calculated according to Full Bench formula evolved in Miss-Owners' Association, Bombay vs. The Rashtriya Mill Mazdoor Sangh, Bombay 1950 L.L.J. 1247F, workmen would be entitled to bonus under the formula; otherwise, they would get bonus under the scheme as modified by Industrial Tribunal. Against order of Appellate Tribunal, the employer filed Civil Appeals Nos. 317/1950 while the workmen filed Civil Appeals Nos. 318/1950 before Supreme Court. On the question of bonus, parties agreed that revision made by Industrial Tribunal should be accepted and the condition laid down by Appellate Tribunal should be deleted. Accordingly on the issue of bonus, Supreme Court upheld Industrial Tribunal and modification made by Appellate Tribunal was set aside. The relevant part of judgment in para 8 reads as under:
"8. ...In view of this agreed statement, we delete the condition laid down by the Appellate Tribunal and order that bonus should be paid in accordance with the scheme as revised by the Industrial Tribunal. Learned counsel for the workmen, however, urged that the condition as to minimum attendance of 100 days for entitlement to any bonus at all and of minimum attendance of 275 days for entitlement to full bonus was arbitrary and should be set aside. This condition has been accepted by both the Tribunals and appears reasonable and we see no reason to interfere. It was further contended that bonus for the years 1951 and 1952 should have been ordered to be paid according to the revised scheme. This contention was also negatived by the two Tribunals and we see no reason to differ from them. The two appeals therefore with respect to bonus are dismissed subject to the modification given above."
148. Now coming to the issue with respect to reinstatement of 250 old workmen, Supreme Court referred to the factual background of the issue stating that a Major Engineering Tribunal was set up by Government of 105 West Bengal in October 1947 to decide disputes between major engineering firms and their workmen. Shalimar Works Ltd. as well as workmen were parties to the disputes which was pending before that Tribunal. The issues before Tribunal were of a very comprehensive nature and included all kinds of disputes that could have arisen between employers and employees. While that adjudication was pending, workmen suddenly pressed certain demands upon the company for immediate solution without awaiting the award of Tribunal, even though the demands so put forward were under adjudication. The company naturally refused to meet the demands when they were under investigation by Tribunal. Consequently, the workmen who had come to work on 23.03.1948, started a sit-down strike after they had entered the company's premises. This strike continued from March 23 to 27 and it was on March 27 that workmen were ejected from the premises by police according to the case of the company or were induced to leave the premises by police according to the case of the workmen. Anyhow, after the workmen left the premises on 27th, the company gave notice on that day that the Works would be closed indefinitely. Another notice was given by the company on 06.04.1948, in which it was notified that all those who had resorted to illegal strike from 23.03.1948, would be deemed to have been discharged from that date. Thereafter, no work was done till 15.05.1948. On that date, the company gave a notice that if sufficient suitable men apply for employment on or before May 19, the works would be opened on a limited scale from May 20. It seems, however, that nothing came out of this notice. Eventually on July 5, the company gave another notice to the effect that the works would re-open on 06.07.1948 and all old employees could apply, and if re-engaged their past services would be counted and their conditions of service would be as awarded by Major Engineering Tribunal, which, it 106 seems, had given its award in the meantime. It was also said in the notice that upto July 21, the company would only consider engagement of former employees and no fresh labour would be recruited till that date. Thereafter, the majority of old workmen applied for being retaken in service and everyone who applied upto July 21 was re-engaged. Thereafter, the company refused to re-engage the old employees, a few of whom are said to have applied in November and December 1948, August 1951, February 1952 and January 1953.
149. Appellate Tribunal found that a list was carelessly prepared in as much as some names were repeated; against some serial number, there were neither names nor ticket numbers. Industrial Tribunal ordered reinstatement without specifying who were to be reinstated; it really did not know who were the persons to be reinstated. In fact, what Tribunal did was to order the company that identity of the workmen to be reinstated might be established to give a general notice on its notice-board notifying the strikers to come and join their duties on a fixed date and to reinstate whichever striker applied within the time allowed.
150. Appellate Tribunal on the issue of reinstatement of 250 old workmen, criticized the award of Industrial Tribunal observing that direction of reinstatement was vague and highly objectionable. Appellate Tribunal also came to the conclusion that identity of 115 workmen had been established, 100 out of them had withdrawn their provident fund and these 100 accepted the order of discharge since they withdrew provident fund and hence no relief could be granted to them. With regard to remaining 15 workmen, Appellate Tribunal found that they had not withdrawn their provident fund, therefore, for their reinstatement also, Appellate Tribunal issued directions. However, Appellate Tribunal also 107 ordered that no compensation could be allowed to the workmen for the period between their discharge and their reinstatement because of the delay on their part in asking for redressal. The company argued before Supreme Court that both Tribunal found the sit-down strike un-justified, hence company was entitled to discharge the workmen. Further, discharge took place in 1948 and company re-opened in July 1948 but the reference of industrial dispute was made after four years without list of the workmen said to have been discharged, hence the reference was not proper. On behalf of the workmen, it was argued that since industrial dispute was pending between company and workmen, the workmen could not have been discharged without obtaining permission of Tribunal under Section 33 of Industrial Disputes Act, 1947. Since discharge notice dated 06.04.1948 was given without obtaining sanction of Tribunal, it was breach of Section 33 and, therefore, workmen were entitled to reinstatement.
151. The above arguments were dealt with by Supreme Court and it observed that on 06.04.1948 when company discharged its workmen, a dispute was already pending and thus, there was breach of Section 33. However, remedy for such breach was provided under Section 33-A which could be availed by an individual workman but they did not avail the said remedy individually or collectively. Some letters were written to Assistant Labour Commissioner in November 1949 i.e., after almost one and a half year from the date of discharge. After writing those letters, again the workmen remained silent/inacted for almost further three years while the reference was made on 07.10.1952. In this backdrop, Supreme Court said:
"13. ...It is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate 108 to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen..."
152. Supreme Court, therefore, gave three reasons for denying relief of reinstatement to workmen i.e.,
(i) Remedy under Section 33-A was not availed by the workmen within a reasonable time after discharge on 06.04.1948;
(ii) Order of discharge was passed after illegal and unjustified sit-
down strike and this give precarious circumstance for passing order; and
(iii) The reference was made after an unreasonable length of time and in a vague manner.
153. This is evident from the following extract of the judgment:
"13. ...In the circumstances there was no reason for ordering reinstatement of any one on such a vague reference after such an unreasonable length of time. The defect in the order of discharge of April 6, due to permission not having been obtained under s. 33 can in the circumstances of this case be ignored on the ground that the workmen who did not re-join in July 1948, were not interested in reinstatement : firstly, on account of the circumstances in which that order came to be made after an illegal and unjustified sit-down strike, secondly, because the workmen in their turn did not avail themselves of the remedy under s. 33-A which was open to them, and thirdly, because the reference was made after an unreasonable length of time and in a vague manner. We are therefore of opinion that the Appellate Tribunal should not have ordered the reinstatement of even the fifteen workmen in the circumstances as their case was exactly the same as the case of the hundred workmen, except in the matter of the withdrawal of the provident fund."
154. It is thus, evident from the above judgment that lapse of four years' time in making reference in the peculiar facts of the case, was taken as a ground to deny relief to the workmen and the above judgment has been 109 rendered in the particular facts of the case before Supreme Court.
155. The next authority relied by appellant is Chhedi Lal Yadav vs. Hari Kishore Yadav (supra). In this case, suit land was sold in execution of rent decree on 13.08.1942. The land in execution was purchased by one Babu Md. Abdus Samad and, thereafter, changed hands four times. In 1951, State of Bihar enacted the Act i.e., Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951 (hereinafter referred to as 'Bihar Act, 1951'). It provided for restoration of certain lands to farmers i.e., raiyats which were sold for arrears of rent or from which they were ejected for arrears of land between 1st day of January 1939 and 31st day of December 1950. This was operational due to floods in Kosi River which made agricultural operations impossible. Appellant Chhedi Lal Yadav did not take any steps for restoration of land till 04.05.1975 on which date one Gonar Yadav, son of Chanchal Yadav (recorded tenant) filed a petition for restoration of disputed land under Section 3 of Bihar Act, 1951. Eventually, after an earlier remand, when the matter was pending in appeal being Appeals No. 540/1978-1979, it was dismissed in default on 07.09.1980. It was again restored on 23.12.1980 but again dismissed for default on 23.03.1983. Application for restoration was moved after 16 years on 09.08.1999 and was allowed without notice to respondents. Ultimately, Additional Collector on 27.12.2000 allowed restoration of the disputed land in favour of appellant. Respondents filed a writ petition which was dismissed by Learned Single Judge of Patna High Court on 25.03.2004 whereagainst letter patent appeal was preferred by respondents which was allowed. This judgment was appealed before Supreme Court by the appellant who was denied restoration of land. Supreme Court observed that after passing of Bihar Act, 1951, the petition for restoration of disputed land was filed on 04.05.1975 i.e., after a period of 24 years. Thereafter, when appeal was 110 dismissed on 23.08.1983, the appellant applied for restoration on 09.08.1999 i.e., after period of 16 years of such dismissal. Appellant, therefore, was found guilty of inordinate, unexplained and unjustified delay, firstly, in making application for restoration of land after a period of 24 years after such a right is said to have accrued to appellant and then in making an application for restoration after a period of 16 years when the matter was dismissed in default.
156. In this backdrop, Supreme Court considered the arguments advanced on behalf of appellant that delay must be over-looked since Bihar Act, 1951 was beneficial piece of legislation intended to bring relief to farmers who had been dispossessed during the proscribed period. It was observed by Supreme Court that it is a settled law where the Statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. Now what reasonable time would be was sought to be explained by referring to the term 'reasonable time', explained in Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, where the term 'reasonable time' is explained as under:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."
157. After referring the term 'reasonable time' as explained in Advanced Law Lexicon, Court said that the time must be reckoned reasonably, not only in order to preserve rights and advantages, a party possesses, but equally to protect each party from the losses he ought not to suffer. Whether an action has been taken within a reasonable time, must also be viewed from the point of the view of the party who might suffer losses. Applying the said reasonable time to the facts of the case before Supreme Court, it was observed that auction sale took place in 1942 and application 111 for restoration of land was first made in 1975. The appeal was dismissed for default in 1983 and, thereafter, 16 years were taken in filing application. In the meantime, disputed land changed hand twice. The long- settled position thus, could only be upset for some very compelling reason and on making out an extremely strong case. Consequently, Supreme Court also negated the arguments advanced on behalf of appellant and in para 13 said:
"13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute..."
158. Supreme Court also referred to the facts of the case before it and said that action is grossly delayed and taken beyond reasonable time, particularly, when the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights. Court said that merely because legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay.
159. The above judgment very categorically state that what reasonable time is, it has to be decided in the circumstances of each case and purpose of the statute and not to be applied mechanically.
160. In State of Punjab & Others vs. Chaman Lal Goyal (supra), which was a service matter. Chaman Lal Goyal (hereinafter referred to as 'writ petitioner') was Superintendent of Nabha High Security Jail in 1986. On his transfer from the said post, he gave charge of his office on 26.12.1986. On the night intervening 1/2-January, 1987 certain inmates, said to be terrorists, made an attempt to escape. In that connection, two of the inmates attempted to escape and one jail official died in the shooting 112 which took place. Six terrorists made good their escape. Inspector General of Prisons immediately inspected prison and submitted report to State Government on 09.01.1987. He reported inter-alia that the incident was cumulative result of lax administration, indiscipline and lack of control over the prisoners. He also reported that the writ petitioner, Chaman Lal Goyal followed the policy of appeasement towards the extremists; he yielded to each and every illegal demand of the extremists as a result detenu Gurdev Singh assumed leadership of the prison population and dictated terms to the administration; there was a total breakdown of the classification of the inmates in the different wards of the jail etc. Inspector General recommended that Deputy Superintendent Shri Surinder Singh and Superintendent Jail, Shri Chaman Lal Goyal responsible for the loose administration and laxity be placed under suspension. Another enquiry was ordered by District Magistrate which was conducted by Sub-Divisional Magistrate but in his report submitted to District Magistrate on 26.01.1987, Sub-Divisional Magistrate did not make any observations or comments for or against the writ petitioner. No action was taken against Chaman Lal Goyal until 1992 and he continued service. For the first time, he was called to the office of Secretary to Home Department on 25.03.1992 and, thereafter, served a memo of charges on 09.07.1992. Writ petitioner submitted explanation on 04.01.1993 denying charges. After obtaining comments of Inspector General of Prisons, Government appointed an enquiry officer on 20.07.1993. Immediately, thereafter, writ petitioner filed writ petition before High Court on 24.08.1993, seeking quashing of charges and order appointing enquiry officer. The writ petition was allowed vide judgment dated 25.08.1994 and High Court quashed memo of charges as well as order appointing enquiry officer. Supreme Court examined judgment of High Court which was based on two findings firstly 113 that writ petitioner was exonerated by Sub-Divisional Magistrate and secondly, on the ground of delay. Supreme Court found that the findings with regard to exoneration by Sub-Divisional Magistrate was nothing but a factual error and so far as the delay in concerned, in para 9 of the judgment, Court observed that though there was a delay of 5 years and a half year in serving the charges but in every case, such delay is not fatal. It all depends on the facts of the given case. Court said, "9. ...The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing..."
161. Judgment of High Court was accordingly set aside by allowing Appeal by Supreme Court.
162. Now, in the present case, we have to examine the above law whether applicable to the facts, situation to present case and if so, to what extent. It is no doubt true that from 2001 and onwards, the official of UPPCB when visited appellant premises, found violation with regard to dumping of hazardous waste which appellant was dumping in the nearby open area outside the factory premises. A closure notice was also issued by UPPCB HQ on 20.01.2005 but no compensation was determined. The serious damage caused by hazardous waste dumped at the questioned site was reported in the report of Justice Arun Tandon, former Judge stating 114 that ground water had got contaminated and health of the people in the area is also severely affected. The said reports dated 25.09.2019 and 26.09.2019 were submitted by the Committee comprising Justice Arun Tandon, former Judge and the said Committee was appointed by Tribunal's order dated 06.08.2018 passed in OA No. 200/2014 (supra). Prior thereto, hazardous effects and consequences actually founded in the area, were not detected and evil effects came into light only by virtue of the aforesaid reports. The above report also brought to the notice of this Tribunal that Statutory Regulators have not discharged their duties properly and appropriate punitive and remedial action were not taken against the polluters, compelling this Tribunal to pass an order directing authorities to take appropriate action in accordance with law against proponents as also erring officials.
163. It is argued that under Sections 14 and 15, there is a limitation prescribed within which Tribunal can exercise its powers under NGT Act, 2010 and when something could not have been done by Tribunal under the aforesaid provision, it could not have directed the authorities to exercise their powers travelling beyond the period of limitation prescribed under Sections 14 and 15 of NGT Act 2010. However, when confronted, Learned Counsel for appellant could not dispute that provisions of Sections 14 and 15 and limitation prescribed thereunder is not extended or applicable to the Statutory Regulators who exercise their powers under Water Act 1974, Air Act 1981 and EP Act 1986.
164. Now the question of limitation or reasonable time, thus, has to be examined in light of nature of the Statue i.e., statues relating to environmental right, if any, possessed by the appellant, with regard to dumping of hazardous waste in open land and causing pollution and 115 affecting health of people at large and whether any right, if possessed by appellant, has vested in itself which should not be divested after long time. Answer to the above question is that no one has any right to dump hazardous waste containing harmful metal or material causing damage to environment and similarly, no one has any right, constitutional, legal or otherwise, to cause pollution and thereby, damage not only to environment but also health of the people at large.
165. Protection of environment has been held to be a pious duty of the mankind as propounded in our ancient scriptures going back to several thousand years.
166. Vedas are universally accepted to be a most precious Indian heritage. They have knowledge of all types. The main vedic views revolve around the concept of nature and life. There are several references on environmental conservation, ecological balance and weather cycle which indicates high level of awareness of the people of the ancient people in respect of environment and ecology. Vedas attach great importance to environmental protection and purity. They persist on safeguarding the habitation, proper afforestation and non-pollution. Man is forbidden from exploiting nature. He is taught to live in harmony with nature and recognize that divinity prevails in all elements, including plants and animals. A verse from Rig Veda says, "Thousands and hundreds of years if you want to enjoy the fruits and happiness of life then take up systematic planting of trees.".
167. At that time, the term 'pollution' was not there but the learned ancestors and sages in ancient scriptures call it 'poisoning of environment'. They believed that five elements (space, air, fire, water and earth) which constitute environment, are all derived from prakriti, the 116 primal energy and our human body is composed of these and related to these five elements and connects each of the elements to one of five senses. Human nose is related to earth, tongue to water, eyes to fire, skin to air and ears to space. This bond between our senses and the elements is foundation of our human relationship with the natural world. Vedas stress the need for protection and development of forests. Human beings have to safeguard the trees. People in vedic times regarded nature and environment in a holistic manner and revered each of its constituents and entities by carefully preserving them.
168. In Rig Veda, verse 6:48:17 says, "Do not harm the environment; do not harm the water and the flora; earth is my mother, I am her son; may the waters remain fresh, do not harm the waters; "do not cut trees, because they remove pollution.".
169. In Yajur Veda, verse 5:43 says, "Do not disturb the sky and do not pollute the atmosphere.". Similar references, we find in Upnishads and other Purans as also the epic literature like Ramayana, Mahabharata and Bhagavad Gita. Kautilya's Arthasastra disclosed lot of knowledge about environment and its conservation. For protection of trees, there was recommendation of Superintendent of Forest Produce and prohibition of certain kinds of trees, violation whereof was punishable. Certain forests were declared protected calling 'Abhayaranya' and heavy penalties and capital punishment were prescribed for offenders in Arthasastra.
170. Presently, protection of environment is global issue and not an isolated problem of an area or a nation. However, in India consciousness about protection of environment is so important that wide interpretation has been given to Article 21 of the Constitution by interpretating Right to Life to include right to live in a wholesome environment (Subhash Kumar 117 vs. State of Bihar and Others AIR1991SC420); pollution free environment (Charan Lal Sahu vs. Union of India, (1991)SCC613); the right to enjoyment of pollution free air and fresh water (Narmada Bachao Andolan vs. Union of India, (2010)10SCC644); a clean environment (Vellore Citizen Welfare Forum vs. Union of India (1996)5SCC647) and a decent environment (Shantistar Builders vs. Narayan Khimalal Gotame & Others (1990)1SCC520).
171. In Rural Litigation and Entitlement Kendra vs. State of UP (1985)2SCC431, it was held that right to live in pollution free and healthy environment also includes right to live in a healthy environment with minimal disturbance of ecological balance.
172. In Virender Gaur & Ors. vs. State of Haryana & Ors., 1994 SUPPL. (6) SCR 78, it was held that live in atmosphere congenial to human existence is a Fundamental right to life under Article 21. The extension of right to life to various spans by judicial interpretation by Supreme Court of India has been appreciated recently by Irish Supreme Court in Friends of the Irish Environment vs. Ireland, 2017 JR 793 (IR) wherein Irish Supreme Court for the purpose of Ireland declined to acknowledge the constitutional right to environment but observed that India is the only exception in the common law family to interpret the constitutional right to environment without an expressed constitutional provision. Irish Court referred to David R Boyd's detailed study titled as "The Environmental Right Revolution: A Global Study of Constitutions, Human Rights, and the Environment" and observed that most of the States where constitutional right to environment was adopted has been achieved by including such wording in the Constitution and not too expensive and direct interpretation.
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173. However, in the environmental context, Indian Supreme Court, as long back in 1980 in Municipal Council Ratlam vs. Vardhichand, AIR 1980SC1622, held that decency and dignity are non-negotiable facets of human rights and the contamination breach such human rights which were reflected as Fundamental Right under the Indian Constitution. Court directed Municipal Council to remedy the lack of sanitary facilities and issued 5 directions in this regard such as construction and management of drainage system, stopping polluted effluents, seeping on the street and to maintain a hygiene and clean environment.
174. In Subhash Kumar vs. State of Bihar (supra), Court observed that right to a healthy environment existed within the right to life and breach of the right to a healthy environment could be litigated.
175. In 19th decade, Supreme Court also recognized various principles applicable to environmental law like 'Polluter Pays' principle, public trust doctrine, precautionary principle, existence of inter-generational rights and sustainable development and also diluted the concept of locus-standi in environment matters in particular. In International environmental law, there is another document of non-regression which mandates the State or its entities not to pursue action which has a net effect of diminishing the legal protection of the environment or access to environmental justice. This doctrine was applied and recognized by this Tribunal in OA No. 677/2016, Society for Protection of Environment and Bio-diversity vs. Union of India, 2018 SCC OnLine NGT 190. When NGT Act, 2010 was enacted, vide Section 20, the principle of 'Polluter Pays' was recognized and this is the statutory recognition in the context of India. The law of environment has developed through judicial precedents. The reason being that environment is nobody's private property but each and every individual 119 separately or collectively has interest in a clean and fresh environment. Therefore, environmental litigation is initiated not for settling of private or personal rights but public rights and welfare. It is for this reason that the environmental litigation has generated through Public Interest Litigation but looking through the importance of the issues and the subject matter, the interest of environment has been protected and given priority over other rights. It has been noted that development is antithesis to environment but for balancing the same, the principle of 'sustainable development' has been propounded and convested so as to keep a balance of both but in a given situation, environment has to prevail over the development. The dispute relating to environment, therefore, has been given different dimensions and this is also evident from Supreme Court's judgment wherein power of this Tribunal for taking suo-moto cognizance of dispute has been recognized, observing that environmental matters stand on a different footing. In brief, Court has said, in Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Others (2021) SCC OnLine SC 897, as under:
i. NGT was conceived as a complimentary specialized forum to deal with all environmental multidisciplinary issues, both as original and also as an appellate authority, which complex issues were hitherto dealt with by High Courts and Supreme Court.
ii. NGT was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of Courts. It was explicitly noted that creation of NGT would allow Supreme Court and High Courts to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum.120
iii. The power of judicial review was omitted to ensure avoidance of High Courts' interference with Tribunal's orders by way of a mid-
way scrutiny by High Courts, before the matter travels to Supreme Court where NGT's orders can be challenged.
iv. The mandate and jurisdiction of NGT is conceived to be of the widest amplitude and it is in the nature of a sui generis forum.
v. Unlike Civil Courts which cannot travel beyond the relief sought by the parties, NGT is conferred with power of moulding any relief. The provisions show that NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.
vi. Myriad roles are to be discharged by NGT, as was encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons.
vii. Parliament intended to confer wide jurisdiction on NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by High Courts under Article 226 of the Constitution or by Supreme Court under Article 32 of the Constitution.
viii. The activities of NGT are not only geared towards the protection of environment but also to ensure that the developments do not cause serious and irreparable damage to ecology and the environment.
ix. Concept of lis, would obviously be beyond the usual understanding in civil cases where there is a party (whether private or government) disturbing the environment and the other 121 one (could be an individual, a body or the government itself), who has concern for the protection of environment.
x. NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration.
xi. In Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, (2012)8SCC326, Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registered suo-moto by the Courts.
xii. As long as the sphere of action is not breached, NGT's powers must be understood to be of the widest amplitude.
xiii. In Mantri Techzone (P) Ltd. vs. Forward Foundation, (2019)18SCC494, Court recognized that NGT is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and in the context, Tribunal has special jurisdiction for enforcement of environmental rights.
xiv. In Rajeev Suri vs. DDA, 2021 SCC Online SC 7, Court said that in its own domain, as crystalized by the statute, the role of NGT is clearly discernible.
xv. Referring to Andhra Pradesh Pollution Control Board vs. Prof. M. V. Nayudu (Retd.) and Ors, (1999)2SCC718, Court said that role of NGT was not simply adjudicatory in the nature of a lis but to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate.
122 xvi. Statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article
21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute. xvii. Referring to State of Meghalaya vs. All Dimasa Students Union, (2019)8SCC177, Court said that reflecting on the expanded role of NGT unlike other Tribunals, this Court so appositely observed that the forum has a duty to do justice while exercising "wide range of jurisdiction" and the "wide range of powers", given to it by the statute.
xviii. NGT has been recognized as one of the most progressive Tribunals in the world.
xix. NGT being one of its own kind of forum, commends us to consider the concept of a sui generis role, for the institution. xx. Referring to DG NHAI vs. Aam Aadmi Lokmanch, 2020 SCC Online SC 572, Court repelled the argument for a restricted jurisdiction for NGT and observed in paragraph 76 that powers conferred on NGT are both reflexive and preventive and the role of NGT was recognized in paragraph 77 as "an expert regulatory body", which can issue general directions also albeit within the statutory framework.
xxi. NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from High Courts and Supreme Court.
123 xxii. Given the multifarious role envisaged for NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to take suo-motu cognizance of matters, for effective discharge of its mandate. xxiii. Section 14(1) of NGT Act, 2010 deals with jurisdiction, and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of NGT gets activated. On these material aspects, NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by NGT is not circumscribed by receipt of application.
xxiv. Section 14(1) exists as a standalone feature, not constricted by the operational mechanism of the subsequent subsections. The sub-Section (2) of Section 14 functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Likewise sub-Section (3) thereafter, refers to the period of limitation concerning applications, when they are addressed to the NGT. Where adjudication is involved, the adjudicatory function under Section 14(2) comes into play. xxv. When it is a case warranting NGT's intervention, or may be a situation calling for decisions to meet certain exigencies, the 124 functions under Section 14(1) can be undertaken and those may not involve any formal application or an adjudicatory process. However, the later provisions may not work in similar fashion. Therefore, care must be taken to ensure unrestricted discharge of the responsibilities under Section 14(1) and that wide arena of NGT's functioning.
xxvi. The other pertinent provisions relating to, inter-alia, jurisdiction, interim orders, payment of compensation and review, do not require any application or appeal, for NGT to pass necessary orders. These crucial powers are expected to be exercised by NGT, would logically suggest that the action/orders of NGT need not always involve any application or appeal. To hold otherwise would not only reduce its effectiveness but would also defeat the legal mandate given to the forum.
xxvii. To be effective in its domain, we need to ascribe to NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.
xxviii. It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as non-adversarial.
xxix. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Court's initiative.
125 xxx. Supreme Court adopted the role of an "amicus environment" by threading together human rights and environmental concerns, resultingly developing a sui generis environmental discourse. xxxi. NGT is the institutionalization of the developments made by Supreme Court in the field of environment law. These progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions, therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence. xxxii. NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. xxxiii. NGT must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal.
176. Therefore, the issue relating to 'environment' vis-a-vis 'reasonable time' or 'limitation' has to be considered in the backdrop of the fact that no one has any legal, constitutional or otherwise right to damage environment to dump hazardous waste in an unscientific manner at any place so as to damage to environment as also adverse impact on the health of the people at large. On the contrary, there is correspondent obligation upon proponent not to indulge commercial or otherwise activities so as to cause damage to environment and if it causes damage to environment, it will have to pay for the damages caused by it for remediation of damaged environment. Statuary Regulators to supervise and regulate such activities are there but if they fail to discharge their obligation in an effective manner, Courts can intervene and if thereafter, appropriate action is taken by such Regulators, it cannot be said that such action is vitiated on 126 account of delay or latches for the very reason that such action even if taken belatedly does not affect anybody's rights related to environment. Illegal inaction on the part of Statutory Regulator in exercise of its statutory power would not benefit a violator of environmental laws if such violation is continuously damaging environment and also health of the people. It will not result in divesting of a vested right of violator of environmental laws and norms.
177. Learned Counsel for appellant then contended that 'cause of action' arose when appellant allegedly dumped the hazardous waste in open area and if the action is not taken at the relevant time, the reasonableness of the period should be taken from that time. In our view, when a proponent has caused dumping of hazardous waste in an unscientific manner which has the effect of continuously damaging environment not only at the time of such dumping but so long as the dumping has continued and even thereafter, it is a continuous cause of action and any belated or delayed remedial or punitive action which is not otherwise barred by any specific statute, will not be vitiated in law.
178. 'Cause of action' as understood in legal parlance is a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed. It is the foundation of a suit or an action. 'Cause of Action' is stated to be entire set of facts that give rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In other words, it is a bundle of facts which when taken with the law applicable to them, gives the plaintiff, the right to relief against defendants. It must contain facts or acts done by the defendants to prove 'cause of action'. While construing or understanding the cause of action, it must be kept in mind that the pleadings must be 127 read as a whole to ascertain its true import. It is not permissible to cull out a sentence or passage and to read it out of the context, in isolation. Although, it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. Intention of the party concerned is to be gathered, from the pleading taken as a whole. [Ref. Shri Udhav Singh vs. Madhav Rao Scindia, (1977) 1 SCC 511 and A.B.C Laminart Pvt Ltd. vs A.P. Agencies AIR1989SC1239].
179. The expression 'cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to the provisions of the NGT Act 2010. Such 'cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of the NGT Act, 2010. A 'cause of action' might arise during the chain of events, in establishment of a project but would not be construed as a 'cause of action' under provisions of Section 14 of NGT Act, 2010 unless it has a direct nexus to environment or gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of NGT Act 2010 'being cause of action first arose'. A dispute giving rise to a 'cause of action' must essentially be an environmental dispute and should relate to either one or more of the Acts stated in Schedule I to NGT Act, 2010. If such dispute leading to 'cause of action' is alien to the question of environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of 128 limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. vs. M.V. Sea Success I and Anr., (2004)9SCC512, J. Mehta vs. Union of India, 2013 ALL (I) NGT REPORTER (2) Delhi 106, Kehar Singh vs. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556 and Goa Foundation vs. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234].
180. Furthermore, 'cause of action' has to be completed. For a dispute to culminate into a cause of action, actionable under Section 14 of NGT Act, 2010, it has to be a 'composite cause of action' meaning that, it must combine all the ingredients spelled out under Sections 14(1) and (2) of NGT Act, 2010. It must satisfy all the legal requirements i.e., there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of 'cause of action' as aforestated would have to be considered as to when it first arose.
181. In contradistinction to 'cause of action first arose', there could be 'continuing cause of action', 'recurring cause of action' or 'successive cause of action'. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, 'cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that 'cause of action' were complete, providing applicant right to invoke the jurisdiction of the Court or the Tribunal. The 'Right to Sue' or 'right to take action' would be subsequent 129 to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by Supreme Court in Bal Krishna Savalram Pujari & Others vs. Sh. Dayaneshwar Maharaj Sansthan & Others AIR1959SC798.
182. In State of Bihar vs Deokaran Nenshi and Another (1972)2SCC890, Supreme Court was dealing with the provisions of Sections 66 and 79 of Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. Supreme Court held as under:
"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
183. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of 'continuing wrong or offence'. For instance, using the factory without registration and license 130 was an offence committed every time the premises were used as a factory. Supreme Court in Maya Rani Punj vs. Commissioner of Income Tax, Delhi, (1986)1SCC445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not. Court held that continued default is obviously on the footing that non- compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesse does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law.
184. High Court of Delhi in Mahavir Spinning Mills Ltd. vs. Hb Leasing And Finances Co. Ltd., 199(2013)DLT227, while explaining Section 22 of Limitation Act, took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the 'continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law. Thus, the expressions 'cause of action first arose', 'continuing cause of action' and 'recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given 131 case. These are generic concepts of civil law which are to be applied with acceptable variations in law.
185. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words, distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will begin to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Anr. vs. Union of India and Another (2011)9SCC126, Bal Krishna Savalram Pujari & Others vs Sh. Dayaneshwar Maharaj Sansthan & Others AIR1959SC798, G.C. Sharma vs. Municipal Corporation of Delhi, (1979)ILR2Delhi771 and Kuchibotha Kanakamma & Another vs Tadepalli Ptanga Rao & Others AIR1957AP419].
186. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of National Green Tribunal (Practice and Procedure) Rules, 2011 (hereinafter referred to as 'NGT Rules, 2011'), shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and, therefore, there is exclusion of the concept of the 'joinder 132 of causes of action' under NGT Rules, 2011. Multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In later, it may give rise to cause of action or if the statutes so provide when 'cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may give rise to a fresh cause of action.
187. To this general rule, there could be exceptions. In particular, such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like 'cause of action first arose' in contradistinction to 'cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions 'when right to sue first arose' or 'cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing environmental clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting environmental clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the environmental clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal 133 of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action 'first arose', it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
188. Now, we would deal with the concept of recurring cause of action. The word 'recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when 'cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression 'cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression 'cause of action first arose'. Supreme Court clarified the distinction between continuing and recurring cause of action with some finesse in M.R. Gupta vs Union of India and others (1995)5SCC628. Court held:
"...The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is 134 justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) F C1."
189. Continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh v. Union of India and Ors., 2006 (91) DRJ 324, M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99].
190. The principle that emerges from the above discussion is that the 'cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue 135 and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression 'cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation. To such composite and complete cause of action that has arisen subsequently, the phraseology of the 'cause of action first arose' would not affect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently.
191. In the present case, when the principles discussed above are applied, we find that though appellant is guilty of dumping hazardous waste containing chromium at the questioned site between 2001 to 2005 or 2008, but the said dumped material has continued to lie there, leachate has percolated in the soil and has contaminated ground water and continuing so. This contaminated ground water through bore wells and 136 wells has been used by the local people and its adverse effect has been noticed on account of various infirmities suffered by local people as noticed in the reports dated 25.09.2019 and 26.09.2019 submitted by the Committee of Justice Arun Tandon, former Judge. Dumped material still is lying there and its consequences of causing to environment as also to health of people are also continuous even till this date. That being so, it is a continuous cause of action hence, it cannot be said that environmental compensation determined by RO UPPCB, impugned in this Appeal, is vitiated in law on account of delay, latches or limitation.
192. We answer issue V in negative and against appellant. ISSUES VI and VIII:
193. In view of the findings recorded in respect of issue IV, we have no hesitation in holding that neither the impugned order dated 28.05.2020, determining liability of environmental compensation of appellant as Rs. 39,98,57,850/- can be sustained nor reports dated 30.09.2021, computing liability of environmental compensation as Rs. 11,45,66,431/- and dated 28.07.2022, computing liability of environmental compensation as Rs. 14,61,66,557/- can be sustained. The above order as also the reports, to the extent the same have determined environmental compensation of appellant, are modified by holding that the liability of appellant to pay environmental compensation is Rs. 11,92,50,000/- on 2650 MT, quantity of waste containing chromium. Order dated 28.05.2020 and reports dated 30.09.2021 and 28.07.2022 stand modified accordingly.
194. Issues VI & VIII are answered accordingly.
137 ISSUE VII:
195. We have held that appellant has violated the provisions of Water Act 1974, Air Act 1981, EP Act 1986 and HWMH Rules, 1989 claimed under EP Act, 1986. The violation of the provisions of Water Act 1974, Air Act 1981 and EP Act 1986 is an offence under Sections 41, 43 and 44; Chapter 7 of Water Act 1974; Sections 37, 38 and 39 Chapter 6 of Air Act, 1981 and Section 15 of EP Act, 1986. Therefore, appellant is guilty of committing crime by committing offences under the aforesaid Statutes. The money earned from the above commercial transactions having been used by appellant for its own benefit taking it as a lawfully earned money, therefore, it amounts to an offence under Section 3 of Prevention of Money Laundering Act, 2002.
Offence under Prevention of Money Laundering Act, 2002:
196. When environmental norms are not observed and in violation thereof there is discharge and/or emission of pollutants causing pollution and thereby commercial activities for commercial gains continue, such activities also attract provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA 2002' as amended from time to time).
197. PMLA 2002 was enacted pursuant to resolution no. S-17/2 adopted by General Assembly of United Nation at 17th Special Sessions held on 23.02.1990 on political declaration and global programme of action; and political declaration adopted by UNGA in the Special Session held on 8th to 10th June, 1998. It came into force however on 01.07.2005. The term "money laundering" and "proceeds of crime" are defined in Section-2(p) and (u) which read as under:
"2(p). "Money Laundering" has the meaning assigned to it in Section-
3. 138 2(u). "Proceeds of Crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a "scheduled offence" or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value within the country or abroad.
[Explanation: for the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the "scheduled offence" but also any property which may directly or indirectly be derived or obtained as result of criminal activity relatable to the "schedule offence";"
198. "Scheduled Offence" is defined in Section 2(y) and says;
"2(y). "Scheduled Offence" means-
(i) The offences specified under Part-A of the Schedule; or
(ii) The offences specified under Part-B of the Schedule, if the total value involved in such offences is one crore rupees or more; or
(iii) The offences specified under Part-C of the schedule."
199. Section 3 of PMLA 2002 talks of offence of money laundering and says:
"3. Offence of money laundering: whosoever directly or indirectly attempts to indulge or knowingly assists or knowing is a party or is actually involve in any process or activity connected proceeds of crime including in concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering."
200. There is an explanation also inserted by Finance Act, 2019 w.e.f. 01.08.2019, but for the issue under consideration, it is not relevant, hence omitted.
201. Attachment of property involved in "money laundering" is governed by Section 5 of PMLA 2002 which permits attachment by Director or any other officer not below the rank of Deputy Director authorised by Director for the purpose of such attachment and he has reason to believe (to be recorded in writing) on the basis of material in his possession that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of 139 such proceeds of crime under this chapter (by order in writing), may provisionally attach such property for a period not exceeding 180 days from the date of the order, in such manner as may be prescribed.
202. First proviso of Section 5(1) imposes a condition that no such order of attachment shall be made unless, in relation to the "Scheduled offence", a report has been forwarded to a Magistrate under Section 173 Cr.P.C. or a complaint has been filed by a person authorised to investigate the offence mentioned in that schedule, before a Magistrate or Court for taking cognizance of the "Scheduled offence".
203. There is an exception in 2nd proviso of Section 5(1) authorising Director or the officers authorised by him to attach any property of any person referred to in Sub-Section 1, if he has reason to believe (to be recorded in writing), on the basis of material in his possession that if such property involved in money laundering is not attached immediately, it is likely to frustrate proceeding under PMLA 2002.
204. Section 5(5) requires the Director or the other officer, who has provisionally attached property under Sub-Section 1 to file a complaint within 30 days from such attachment stating facts of such attachment before Adjudicating Authority which is appointed under Section 6.
205. Section 8 provides the procedure to be observed by Adjudicating Authority to pass an order confirming attachment of property under Section 5(1). When such order of confirmation is passed, attached property would remain under attachment till trial completes and if Special Court under PMLA 2002 recorded finding of conviction of commission of offence of money laundering, such property shall stand confiscated to the Central Government but where Special Court finds that offence of money 140 laundering has not taken place or properties not involved in money laundering, it shall release such property to the person entitled to receive it.
206. Section 5 shows that except the cases covered by second proviso, no attachment is permissible unless report under Section 173 Cr.P.C. submitted to the Magistrate or complaint has been filed before the Magistrate or concerned to take cognizance of "Scheduled offence".
207. Schedule to PMLA 2002 as initially came into force on 01.07.2005, was having Part-A, divided in paragraph 1, dealing with Section 121 and 121(A) of IPC; paragraph-2 covering certain offences under Narcotic Drugs and Psychotropic Substances Act, 1985 and Part-B paragraph 1 offences under Sections 302, 304, 307, 308, 327, 329, 364(A), 384 to 389, 392 to 402, 467, 489A and 489B of IPC; paragraph 2 contains some offences of Arms Act, paragraph 3 referred to offences under Wild Life Protection Act 1972, Paragraph 4, offences under Immoral Traffic Prevention Act, 1956 and Paragraph 5, offences under Sections 7, 8, 9 and 10 of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PCA 1988').
208. Thus, PMLA 2002, at the time of enforcement in 2005, did not cover Sections 120-B, 468, 420 and 471 IPC and Section 13 of PCA, 1988 and environmental enactments. In other words, offences under these Sections/Statutes were not "Scheduled offences" for the purpose of Section 3 PMLA 2002.
209. The Schedule underwent amendment for the first time vide Prevention of Money Laundering (Amendment) Act, 2009 published in Gazette of India, Extraordinary dated 06.03.2009. In Part A paragraph 1, Sections 489A and 489B were inserted. We are not concerned with the 141 offences referred under paragraph 2 of the Schedule, hence amendments made therein are omitted. After paragraph-2, paragraph-3 and paragraphs-4 were inserted relating to offences under Explosive Substance Act, 1908 and Offences under Unlawful Activities (Prevention) Act, 1967. In Part-B, paragraph 1 was substituted and a number of offences of IPC were added and this included Section 120-B, 420, 467 and 471 IPC. Some amendments were made in paragraph 3 and 5 of Part-B and thereafter, paragraphs 6 to 25 were inserted covering offences under several enactments which are not relevant for the purpose of issue before us. Part C was also inserted in the schedule to cover cross border offences and the same is also omitted. Even after this amendment, Sections 468 IPC and 13 PCA, 1988 were not "scheduled offence" so as to attract offence under Section 3 of PMLA 2002. The amendment was given effect from 01.06.2009.
210. Next amendment was made vide Prevention of Money Laundering (Amendment) Act, 2012 published in Gazette of India, Extraordinary dated 04.01.2013. Paragraph A part-1 of the Schedule was substituted adding some more offences of IPC. In fact, entire Part A was substituted by a new Part-A which had paragraphs 1 to 28 covering offences under various Statutes, some were earlier in Part A and also Part B and some newly added. Paragraph 8 Part 1 as substituted in 2012 covered offences under Sections 7, 8, 9, 10 and 13 of PCA, 1988. Thus, Section 13 was included therein only in 2013. In Part B, paragraph 1 to 25 were omitted and in Part C serial No. 2 and entries relating thereto, were omitted. This amendment came into force from 15.02.2013.
211. The offences under environmental norms have been included in the Schedule to PMLA 2002 inasmuch as paragraph 23, 25,26,27 have been 142 inserted by Section 30 of PML (Amendment) Act, 2012 which came into force on 15.02.2013 and said insertion of paragraphs are as under:
"PARAGRAPH 23 OFFENCES UNDER THE BIOLOGICAL DIVERSITY ACT, 2002 (18 of 2003) Section Description of offence 55 read with Penalties for contravention of section 6, etc. section 6.
PARAGRAPH 25 OFFENCES UNDER THE ENVIRONMENT PROTECTION ACT, 1986 (29 OF 1986) Section Description of offence 15 read with Penalty for discharging environmental section 7. pollutants, etc., in section 7 excess of prescribed standards.
15 read with Penalty for handling hazardous substances section 8. without section 8 complying with procedural safeguards.
PARAGRAPH 26 OFFENCES UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 (6 OF 1974) Section Description of offence 41(2) Penalty for pollution of stream or well.
43 Penalty for contravention of provisions of section 24.
PARAGRAPH 27 UNDER THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 (14 OF 1981) Section Description of offence 37 Failure to comply with the provisions for operating industrial plant."143
212. All these provisions relating to offences under various Environmental Statutes have been placed in part A of the Schedule. Application of PMLA 2002 in respect to the aforesaid offences has to be seen in the light of Section 3 read with schedule as amended vide Amendment Act, 2012.
213. In A.K. Samsuddin vs. Union of India, Writ Petition No. 15378/2016 decided on 19.07.2016, Kerala High Court said that the time of commission of the "scheduled offence" is not relevant in the context of the prosecution under the Act. What is relevant in the context of the prosecution is the time of commission of the Act of money laundering. It has to be established that the money involved are the proceeds of crime and having full knowledge of the same, the person concerned projects it as untainted property.
214. In Smt. Soodamani Dorai vs. Joint Director of Enforcement, Writ Petition No.8383 of 2013 decided on 04.10.2018, a Single Judge of Madras High Court observed that substratal subject of the Act is to prevent money laundering and to confiscate proceeds of crime.
215. PMLA 2002 brings in a different kind of offence on the statute book. In Janta Jha vs. Assistant Director (2013) SCC Online (Odisha) 619, High Court of Odisha held that even if an accused has been acquitted of the charges framed against him in Sessions Trial, a proceeding under PMLA 2002 cannot amount to double jeopardy where procedure and nature of proof are totally different from a criminal proceeding under IPC.
216. On the contrary in Rajeev Chanana vs. Deputy Director (2014) SCC Online (Delhi) 4889, it was held by Delhi High Court that after acquittal of a person from a "Scheduled offence", trial for an offence under 144 Section 3 of PMLA 2002 will not survive. Court said it is hard to imagine as to how a trial for an offence of money laundering can continue where the fundamental basis, i.e., the commission of a Scheduled offence has been found to be unproved.
217. The question of simultaneous investigation by Police or CBI or any other Investigating Agencies in respect of schedule offences and Enforcement Directorate (hereinafter referred to as 'ED') under Section 3 of PMLA 2002 was considered by a Single Judge (Hon'ble S.P. Garg, J) of Delhi High Court in Rohit Tandon vs. Enforcement Directorate in Bail Application No. 119 of 2017 and Crl.M.B. 121 of 2017. In the judgment dated 05.05.2017, Court found that Delhi Police registered FIR under Section 420, 406, 409, 467, 468, 188 and 120-B on 25.12.2016 and very next date ED registered ECIR on 26.12.2016. Court said that presence of "Scheduled offence" is only a trigger point for initiating investigation under PMLA 2002. Act nowhere prescribes, if ED is debarred from conducting investigation under Sections 3 and 4 PMLA 2002 unless investigating agency concludes its investigation in the FIR or charge sheet is filed therein for commission of "Scheduled offence". The proceedings under PMLA 2002 are distinct from the proceedings of the "Scheduled offence". In the Investigation of FIR by Police, ED has no control. The proceedings under PMLA 2002 are not dependent on the outcome of the investigation conducted in the "Scheduled offences". More over to avoid conflicting and multiple opinions of court, Section 44 PMLA 2002 provides trial by Special Court in case of "Scheduled Offence" and offence under PMLA 2002. Delhi High Court relied on a judgment of Allahabad High Court in Sushil Kumar Katiyar vs. Union of India & Ors. (MANU/UP/0777/2016) wherein Allahabad High Court said: 145
"A person can be prosecuted for the offence of money laundering even if he is not guilty of "Scheduled offences" and his property can also be provisionally attached irrespective of the fact as to whether he has been found guity of the "Scheduled offences". The prosecution is not required to wait for the result of the conviction for the "scheduled offences" in order to initiate proceedings U/s 3 of the PML Act. However, the person against whom, there is an allegation of the offence of money laundering, can approach appropriate forum, in order to show his bonafide and innocence that is not guilty of the offence of money laundering and has not acquired any proceeds of crime or any property out of the proceeds of crime."
218. Against the judgment of Delhi High Court in Rohit Tandon vs. The Enforcement Directorate, Appeal was filed in Supreme Court and judgment is reported in (2017) SCC Online SC 1304. Supreme Court upheld, the order of High Court rejecting Bail. Then meeting further argument raised on behalf of Rohit Tandon that the incriminating material recovered, would not take the colour of proceeds of crime as there is no allegation or the prosecution complaint that un-accounted cash deposited by appellant was result of criminal activity, it was observed that the expression "criminal activity" has not been defined but very nature of the alleged activities of the accused referred to in the predicate offence are criminal activities. Court observed:
".... however, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens-rea. In that the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a "scheduled offence". That would come within the meaning of Section 3 and punishable under Section 4 of the Act, being a case of money laundering."
219. In P. Chidambaram vs. Directorate of Enforcement (2019) SCC Online SC 1143, Court considered scheme of PMLA 2002, and observed that money laundering is the process of concealing illicit sources of money and launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or 146 transformed into legitimate asset. It is realized world around that money laundering poses a serious threat not only to the financial system of the country but also to their integrity and sovereignty. "Schedule offence" is a sine qua non for the offence of money laundering which would generate the money i.e., being laundered.
220. In the present case, when environmental norms were not followed, by dumping hazardous waste in violation of HWMW Rules 1989 read with EP Act 1986 contaminating groundwater, this resulted in commissioning of Scheduled offence and revenue earned by committing such crime is proceeds of crime as defined in PMLA 2002 and by showing it part of business proceeds in accounts amounts to projecting or claiming it as untainted property. The entire activity is covered by Section 3 of PMLA 2002.
221. It appears that initially PMLA 2002 was enacted so as to cover activities of terrorist, illegal traffic in narcotics, enemies of the country etc., applying to a very limited number of statutes, Enforcement Directorate had been taking action under PMLA 2002 in a narrow sphere. It has forgot to take note of the fact that scope of PMLA 2002 has been enhanced or widened, a lot, at least after amendment Act of 2012 w.e.f. 15.02.2013. More than nine and half years have passed but not a single action has been taken by Enforcement Directorate, against violators committing offences under environmental Statutes which have been included in the Schedule, part A of PMLA 2002. The offences under Environmental Acts, as such are non-cognizable but under PMLA 2002, offences are cognizable. Since Competent Authority has never resorted to proceed against violators of environmental Statutes despite committing offences thereunder, which are included in PMLA 2002, this inaction has encouraged polluters to 147 continue violation with impunity. Parliament's intention of treating environmental violations as very serious offences is writ large from the fact that, offences under environmental laws as noticed above, have been included in Schedule, Part A of PMLA 2002 yet enforcement machinery has frustrated entire attempt. It is incumbent upon the Competent Authorities regulating and enforcing PMLA 2002 to take action against such violators, if not against small violators, at least against substantial resourceful bigger proponents whose violations are liable to cause huge damage to environment as also the inhabitants.
222. We do not intend to delve more on the above aspect. Our endeavor was to highlight inapt attitude and apathy towards enforcement of laws enacted to give teeth to environmental laws but responsible authorities find it convenient to put these laws in hibernation frustrating the very purpose of enactment.
223. We accordingly, answer issue VII holding that appellant having violated the provisions of Water Act 1974, Air Act 1981 and EP Act 1986, therefore is also liable for action under PMLA 2002.
224. Issue VII is answered in affirmative and against appellant.
225. In view of the above discussion, we allow Appeal partly in the manner as under:
I. Appellant shall pay environmental compensation of Rs.
11,92,50,000/- (Rupees eleven crore ninety two lakhs fifty thousand only) with UPPCB within three months, failing which, recovery proceedings in accordance with law, shall be initiated by the Competent Authority without any further delay.
II. After recovery of the said amount, respondent shall utilize the same for recovery, restoration and remediation of the environment which 148 has been deteriorated and damaged by dumping hazardous waste comprising Chromium at the questioned site.
III. For the purpose of preparing an action plan for use of amount of environmental compensation for remediation of environment, we constitute a Joint Committee comprising UPPCB, CPCB and District Magistrate, Kanpur Dehat who shall prepare the plan for remediation of environment and use of environmental compensation for the said purpose. The Action Plan may contain details activities planned, implementation schedule with specific timeline, budgetary provision for each activities, monitoring mechanism etc. The above plan shall be prepared within two months and executed within next six months from the date of this order.
IV. An action taken report with regard to recovery and utilization of the amount recovered shall be submitted to the Registrar General, NGT, Principal Bench, New Delhi by 15th December, 2023 and if the Registrar General finds necessary, the matter shall be placed with action taken report for appropriate direction of this Tribunal.
226. All pending IAs shall stand disposed of.
227. A Copy of this order be forwarded to Chief Secretary, UP; Additional Chief Secretary, Industries, UP; Additional Chief Secretary, Environment, UP; CPCB; UPPCB; DM, Kanpur Dehat and Enforcement Directorate by e- mail for information and compliance.
Adarsh Kumar Goel, Chairperson Sudhir Agarwal, Judicial Member 149 Prof. A. Senthil Vel, Expert Member Dr. Afroz Ahmad, Expert Member January 16, 2023 Appeal No. 15/2020 R 150